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District Court 1 March 2024

R v DOMINGUES

[2024] NSWDC 40

DrugsFraud & dishonesty
CRIMES SENTENCE DEAL WITH PROCEEDS OF CRIME CRIMES SENTENCE METHYLAMPHETAMINE NON

Citation: R v Domingues [2024] NSWDC 40
Court: District Court of New South Wales
Date: 1 March 2024
Judge: Lerve DCJ

Background

Police stopped a vehicle travelling above the speed limit on the Sturt Highway in Wagga Wagga in September 2022. The driver gave a false name and denied being disqualified from driving. A search of the vehicle uncovered $58,245 in vacuum-sealed cash, over 25 grams of methylamphetamine, drug packaging equipment including a cryovac sealing machine, digital scales, and assorted paraphernalia.

The offender was charged on indictment with knowingly dealing with the proceeds of crime and knowingly taking part in the supply of a prohibited drug (methylamphetamine). Six additional matters were listed on a Form 1 document (meaning they were taken into account at sentencing without separate conviction), and four further charges were dealt with by way of a section 166 Certificate under the Criminal Procedure Act. Those certificate charges included driving while disqualified, driving with an illicit drug present in an oral sample, giving a false name to police, and possessing a further quantity of methylamphetamine.

The offender pleaded guilty to all matters. Sentencing proceeded on agreed facts, with the offender relying on a claim of non-exculpatory duress arising from a substantial drug debt, as well as diagnoses of post-traumatic stress disorder and depression.

  • What discount applied to the guilty pleas, and at what point were those pleas entered?
  • How should the six Form 1 matters affect the ultimate sentence?
  • What weight should be given to non-exculpatory duress arising from a drug debt as a mitigating factor?
  • What weight should be given to the offender's mental health conditions (PTSD and depression)?
  • Whether an aggregate sentence was appropriate, and what the correct non-parole period should be given a finding of special circumstances?
  • How should the section 166 Certificate matters and the charges carrying no imprisonment be dealt with?

Decision

Lerve DCJ allowed a full 25 percent discount for the utilitarian value of the guilty pleas across all matters. The indictment charges had been pleaded in the Local Court before committal for sentence. The section 166 Certificate charges were pleaded on the day of the sentence hearing, which the court accepted was the first practical opportunity to do so, warranting the same full discount.

On the Form 1 matters, the court applied the guideline judgment in the Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act (2002) 56 NSWLR 146. Lerve DCJ noted that while six Form 1 matters required some upward impact on the sentence for the drug supply count, their nature meant that impact would be quite modest.

The court accepted non-exculpatory duress as a mitigating factor. The offender's claim that he participated in the offending due to pressure arising from a substantial drug debt was treated as reducing his moral culpability, even though it did not excuse the conduct. His PTSD and depression were also accepted as relevant mitigating considerations.

The court determined that an aggregate sentence was appropriate. The component sentences, before aggregation, were assessed as: two years and three months for dealing with the proceeds of crime (starting point three years); eighteen months for drug supply including Form 1 matters (starting point two years); eight months for driving while disqualified (starting point eleven months); and six months for possessing a prohibited drug (starting point nine months). A finding of special circumstances was made, justifying a longer parole period than the statutory default. The two driving charges carrying no imprisonment were dealt with by way of conviction with no further penalty under section 10A of the Crimes (Sentencing Procedure) Act.

Orders Made

  • The offender was convicted on all counts to which he pleaded guilty.
  • An aggregate sentence of 3 years and 3 months was imposed, with a non-parole period of 1 year and 10 months (22 months).
  • The non-parole period commenced on 14 April 2023 and expires on 13 February 2025.
  • The balance of term (parole) of 1 year and 5 months (17 months) commences on 14 February 2025 and expires on 13 July 2026.
  • The court recommended release at the expiration of the non-parole period, and further recommended that any parole be conditioned on supervision and compliance with treatment and counselling directions for substance abuse.
  • In respect of the charges of Driving State False Name or Home Address and Drive with Illicit Drug Present in Blood or Oral Sample: the offender was convicted but no further penalty was imposed under section 10A of the Crimes (Sentencing Procedure) Act.
  • In respect of Drive While Disqualified and Drive with Illicit Drug in Blood or Oral Sample: automatic disqualification periods were imposed, to be served concurrently.

Key Takeaways

  • A full 25 percent utilitarian plea discount applied even where guilty pleas to section 166 Certificate matters were entered on the day of sentencing, because that was the first practical opportunity to enter those pleas.
  • Non-exculpatory duress, here arising from a substantial drug debt, can operate as a mitigating factor that reduces moral culpability even though it does not excuse the offending.
  • Where six Form 1 matters are taken into account, the District Court confirmed there must be some upward impact on the head sentence, but the degree of that impact depends on the nature of the individual Form 1 matters.
  • Charges that carry no maximum term of imprisonment are appropriately dealt with by conviction without further penalty under section 10A of the Crimes (Sentencing Procedure) Act, and that course does not preclude the imposition of a disqualification period.
  • A finding of special circumstances justified a departure from the default statutory ratio between the non-parole period and the total sentence, producing a longer parole period to support the offender's treatment and rehabilitation for substance abuse and mental health conditions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 37, 166
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1)
- Road Transport Act 2013 (NSW), ss 54(1), 111(1)(a), 175(2)(b)

Cases
- The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act (2002) 56 NSWLR 146 (Guideline Judgment on Form 1 matters)
- Jibran v R [2020] NSWCCA 86
- Olbrich v The Queen (1999) 199 CLR 270
- Parente v R (2017) 96 NSWLR 633
- Tiknius v R (2011) 221 A Crim R 365