Citation: R v Kirby [2024] NSWDC 495
Court: District Court of New South Wales
Date: 18 October 2024
Judge(s): Scotting DCJ
Background
The offender, a 24-year-old man of Indigenous and Tongan heritage, pleaded guilty in the Local Court to two counts of supplying a prohibited drug in a large commercial quantity, under the Drug Misuse and Trafficking Act 1985. He appeared in the District Court for sentencing.
Between September and November 2022, the offender worked as a "runner" for a criminal drug supply organisation based at Caringbah in Sydney. He delivered drugs, collected cash, and returned funds to more senior members of the group. His role encompassed five separate supplies of cocaine totalling 1,401.1 grams (worth $425,000) and three separate supplies of MDMA totalling 6,890.6 grams (worth $179,000), for a combined cash value of $604,000.
The offender also asked the court to take into account a related offence of participating in a criminal group under the Crimes Act 1900, which was listed on a Form 1 to be considered alongside the principal offences at sentencing.
Legal Issues
- What was the appropriate sentence for supplying large commercial quantities of cocaine and MDMA, taking into account the objective gravity of the offending?
- To what extent did the offender's personal history, addiction, and moral culpability reduce the sentence otherwise warranted?
- Were special circumstances established to justify a longer parole period than the standard one-third of the head sentence?
- How did parity with co-offenders, particularly a co-accused who had already been sentenced, affect the outcome?
Decision
Objective seriousness
The cocaine supplied was almost 1.5 times the large commercial threshold of 1 kg; the MDMA supplied was almost 14 times the large commercial threshold of 500 grams. The drugs were exchanged across eight separate transactions over approximately three months for a total of $604,000 (at [44]-[45]). The offender held a trusted role in the organisation, was involved in negotiations, drove to obtain drugs, and returned cash to superiors, placing him at the lower end of the hierarchy but with significant responsibility (at [46]).
Moral culpability
Scotting DCJ found that the offender's moral culpability was significantly reduced. The offender endured severe physical abuse from both his father and his grandfather throughout childhood, was placed in foster care, and experienced disrupted schooling and cultural disconnection (at [13]-[24]). By the time of the offending he had developed severe methamphetamine use disorder, cocaine use disorder, and alcohol use disorder, and had incurred drug debts after losing his job (at [41], [47]).
Subjective features and rehabilitation
The offender had no prior adult convictions and was 22 years old at the time of the offending (at [52]). While on bail he obtained full-time employment with an Indigenous scaffolding company, was promoted to leading hand, remained abstinent from drugs and alcohol, and was offered ongoing work upon release (at [36], [53]). The court accepted that his remorse was genuine (at [54]). General deterrence remained a fundamental consideration for serious drug offences, but the need for specific deterrence was substantially reduced given the offender's demonstrated rehabilitation while on bail (at [49]-[50]).
Parity and special circumstances
The court applied the parity principle, noting that the offender's involvement, drug quantities, and subjective circumstances were materially comparable to those of a co-accused, Mr Kenny, who had already been sentenced (at [57]). Special circumstances were found, justifying a longer parole period, on the basis that this was the offender's first time in custody and that his mental health and addiction issues warranted a more extended supervisory period on release (at [60]).
Orders Made
- The offender is convicted on the charges of supplying a prohibited drug in a large commercial quantity.
- An aggregate term of imprisonment of 4 years and 9 months is imposed, with a non-parole period of 2 years and 5 months, backdated to commence on 21 December 2023.
- The non-parole period expires on 20 May 2026.
- The head sentence expires on 20 September 2028.
- The offender is eligible for release on parole on 20 May 2026.
Key Takeaways
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Severe childhood trauma, culturally disrupted upbringing, and clinically assessed substance use disorders can significantly reduce an offender's moral culpability even in large commercial drug supply cases, though they do not eliminate the primacy of general deterrence (at [47], [49]).
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A first-time custodial offender's mental health and addiction issues can constitute special circumstances under the Crimes (Sentencing Procedure) Act 1999, warranting a longer parole period beyond the standard statutory ratio (at [60]).
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The District Court applied the parity principle by reference to a co-accused who had faced materially identical charges and comparable subjective circumstances, treating comparable involvement as a basis for similar sentences (at [57]).
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Demonstrated rehabilitation during a bail period, including sustained abstinence, stable employment, and prosocial support networks, is a weighty mitigating factor that can substantially diminish the need for specific deterrence (at [50], [53]).
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Where a defendant's role in a drug supply organisation sits at the lower end of the hierarchy but still involves trust and meaningful operational responsibility, the sentencing court will treat the offender as a participant of some significance rather than a mere courier (at [46]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Drug Misuse and Trafficking Act 1985
Cases
- Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147
- R v Olbrich (1999) 199 CLR 270