Citation: R v Fajajo [2024] NSWDC 88
Court: District Court of New South Wales
Date: 14 February 2024
Judge: Noman SC DCJ
Background
The offender appeared for sentence on three offences: one count of supplying an indictable quantity of a prohibited drug (methylamphetamine), contrary to s.25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), and two counts of driving whilst disqualified under s.54(1)(a) of the Road Transport Act 2013 (NSW). All three offences arose in September 2022. The driving offences related to three occasions on which the offender drove to premises connected with drug activity, while subject to a disqualification running until 2045.
Police intercepted the offender's phone from July 2022 and conducted physical surveillance. When arrested on 20 September 2022, the offender was found with methamphetamine, heroin, two mobile phones, and over $2,000 in cash. A subsequent search of associated premises uncovered further drugs, including 37.02 grams of methylamphetamine, and additional cash. The total money located across all seizures was approximately $21,405.
The offender also asked the court to take into account, via Form 1, additional offences including dealing with proceeds of crime and four counts of possessing a prohibited drug. He had been on parole at the time of the offending, which was revoked following his arrest.
Legal Issues
- What discount for a guilty plea applied where the plea was entered after the listed trial date, and whether the circumstances of the plea warranted a higher discount than the statutory minimum
- Whether the drugs and money found at associated premises were in the offender's sole possession or jointly held with another person present at the time
- How the offender's disadvantaged background, drug use, and mental health bore on his moral culpability
- Whether special circumstances existed to justify reducing the proportion of the sentence to be served before parole
- How totality applied across three separate offences attracting two different maximum penalties
Decision
Guilty plea discount: The drug supply plea was entered on 17 January 2024, two days after the listed trial date of 15 January 2024, following negotiations that resulted in a proceeds of crime charge being placed on a Form 1. The court found the statutory framework governing plea timing was mandatory and applied a 5% discount only, rejecting the submission that a 25% reduction was warranted on the basis that the facts had evolved since committal. The two driving offences, which were resolved as part of the same plea negotiations, attracted a 20% discount each, consistent with their earlier listing in the Local Court.
Possession and role: The court declined to find that the drugs and money were jointly possessed with another person found at the premises, holding there was no evidentiary basis for that conclusion beyond speculation. The presence of another person's medication in the backpack did not establish joint possession. The court accepted the offender played a supplier role, consistent with the quantity of drugs and cash located, though it characterised the offence as a relatively lower-level example within the supply category, noting limited evidence of sophistication, no evidence of actual dissemination, and uncertainty about purity or value.
Moral culpability and disadvantage: The court accepted that the offender's background involved significant disadvantage, including exposure to violence, sexual abuse, the early death of his mother, and abandonment by his father. These factors were found to have contributed to his drug use, which in turn informed his offending. The court treated this as moderately lessening his moral culpability, while acknowledging the inherent seriousness of drug supply offences and their harm to the community.
Special circumstances and totality: A finding of special circumstances was made on the basis of the offender's conditions in custody (including restrictions arising from a non-association classification), his mental health, COVID-related restrictions, and the need for extended supervision on release. This reduced the non-parole proportion to approximately 60% of the total sentence. The court imposed an aggregate sentence, commencing from 20 November 2022 (two months after the parole revocation) to account for the time already spent on the revoked parole without double-punishing for the breach itself.
Orders Made
- Convicted on all three offences
- Aggregate sentence of 2 years and 4 months imprisonment, commencing 20 November 2022
- Non-parole period of 1 year and 5 months, with release to parole on 19 April 2024
- Automatic disqualification period to apply to both driving offences
Indicative sentences (before aggregation):
- Supply prohibited drug (with Form 1 matters): 2 years and 2 months imprisonment
- Drive whilst disqualified, sequence 1 (with Form 1 matter): 9 months imprisonment
- Drive whilst disqualified, sequence 3: 8 months imprisonment
Key Takeaways
- The District Court confirmed that the legislative framework governing guilty plea discounts is mandatory: a plea entered after a listed trial date attracted a 5% reduction only, regardless of subsequent developments in the evidence or plea negotiations.
- A submission that drugs were jointly possessed by the offender and another person present at the premises was rejected where the only connection was that person's medication being found in the same bag. The court treated such a finding as unsupported speculation.
- Disadvantaged background, childhood trauma, and drug addiction can moderate an offender's moral culpability in sentencing, where a causal link between those circumstances and the offending is established.
- Special circumstances were found on the combination of restrictive custody conditions, mental health needs, and the requirement for extended post-release supervision, reducing the non-parole proportion below the standard statutory ratio.
- Where an offender was on parole that was revoked as a result of the index offending, the sentencing court adjusted the commencement date of the new sentence to avoid double punishment, while still treating the parole breach as a circumstance of aggravation.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s.25(1) (supply indictable quantity of prohibited drug) and s.29 (evidentiary provision)
- Road Transport Act 2013 (NSW), s.54(1)(a) (drive whilst disqualified)
Cases:
No specific cases were cited in the judgment text. Reference was made to a "guideline judgment" governing the treatment of Form 1 offences, though it was not named in the provided text.