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District Court 27 February 2025

R v Turi

[2025] NSWDC 159

Drugs

Citation: R v Turi [2025] NSWDC 159
Court: District Court of New South Wales
Date: 27 February 2025
Judge: Haesler SC DCJ

Background

The offender, born in 2002, came to Australia as a refugee with his family. He experienced bullying and reported sexual abuse during childhood, and developed a serious cocaine addiction as a coping mechanism. By early 2023, police had placed his apartment under lawful surveillance.

Between April and May 2023, the offender was observed supplying cocaine on multiple occasions, working with at least one associate, and handling substantial sums of cash reasonably suspected to be proceeds of crime. He was also arrested for a menacing driving offence against his then partner in May 2023. A second arrest in October 2023 kept him in custody continuously from that point.

Following plea negotiations in the Local Court, four charges were committed to the District Court for sentence, with a fifth dealt with on a Form 1 (a procedure allowing additional offences to be taken into account at sentencing without imposing a separate penalty). The court also heard a severity appeal against the magistrate's earlier sentence for the menacing driving offence.

  • How should a Form 1 offence be treated when its underlying facts are coextensive with, and intrinsic to, the facts of a principal offence being sentenced, raising a risk of double counting?
  • What was the appropriate objective seriousness of each drug-related offence, including the commercial supply charge carrying a standard non-parole period of 10 years?
  • How should the court weigh significant subjective mitigating factors (refugee background, childhood trauma, sexual abuse, addiction, mental health, youth, and family support) against the objective gravity of the offending?
  • What aggregate sentence and non-parole period were appropriate, including the application of a 25% utilitarian discount for early guilty pleas and a finding of special circumstances?
  • Was the magistrate's sentence of 10 months imprisonment for the menacing driving offence excessive?

Decision

The Form 1 and double-counting: The court identified a careful path through a doctrinal tension. Under established authority, a Form 1 offence must be taken into account at sentencing, but cannot be the subject of a separate penalty. Here, the Form 1 facts (cocaine distributed between 26 and 29 April 2023) were entirely coextensive with the facts underlying the criminal group participation offence. The court took the Form 1 into account on the commercial supply charge (Sequence 27), as required, but emphasised that considerable caution was needed to avoid double counting, given that the same facts were already intrinsic to its assessment of the criminal group offence.

Objective seriousness: The court assessed the criminal group offence as short-lived but serious, with the offender taking a leading role. The supply of 145.7 grams of cocaine (Sequence 15) was characterised as a business operation run from the offender's home, primarily to fund his own addiction and basic living costs, but involving a significant volume of transactions. The commercial supply charge (Sequence 27, involving 251.6 grams of cocaine) attracted a standard non-parole period of 10 years, reflecting Parliament's view of its gravity. The court noted the operation was not highly organised, relied on credit arrangements up and down the supply chain, but nonetheless involved considerable quantities of cash and cocaine over the relevant periods.

Subjective factors: The court gave substantial weight to the offender's youth, refugee background, childhood trauma, reported sexual abuse, drug addiction, and mental health conditions. These factors informed a finding of special circumstances, which extended the parole period beyond the statutory default. The court applied a 25% utilitarian discount across all charges to reflect the guilty pleas entered in the Local Court, and took care when accumulating sentences to ensure that discount was not eroded by the aggregation process.

The severity appeal: The court confirmed the conviction and the 10-month sentence imposed by the magistrate, but varied the commencement date to account for 113 days of pre-sentence custody. The licence disqualification period was reduced to the statutory minimum of 12 months.

Orders Made

On the severity appeal (menacing driving):
- Conviction confirmed
- Sentence of 10 months imprisonment and non-parole period of 6 months confirmed
- Commencement date varied to 5 July 2023 (accounting for 113 days on remand from 26 October 2023)
- Disqualification period reduced to the minimum of 12 months

Aggregate sentence (drug and proceeds charges):
- Sequence 28 (participate in criminal group): 1 year 1 month
- Sequence 15 (supply less than commercial quantity, 145.7g cocaine): 1 year 10 months
- Sequence 27 (supply more than commercial quantity, 251.6g cocaine): 2 years 4 months, non-parole period 1 year 2 months
- Sequence 29 (deal with proceeds of crime, $66,500): 1 year 3 months
- Aggregate sentence: 3 years 3 months, commencing 5 October 2023
- Aggregate non-parole period: 1 year 9 months commencing 5 October 2023
- Eligible for parole consideration: 4 July 2025 (subject to State Parole Authority decision)
- Parole period: 1 year 6 months
- Sentence expiry: 4 January 2027

Key Takeaways

  • Where the facts founding a Form 1 offence are coextensive with and intrinsic to a principal offence being sentenced, the District Court held that considerable caution is required to avoid double counting, even though the Form 1 must still formally be taken into account.
  • A finding of special circumstances is available and appropriate where an offender's youth, refugee background, childhood trauma, addiction, and mental health collectively indicate a need for an extended period of supervised parole.
  • The 25% utilitarian discount for an early guilty plea applies to each individual sentence, and a sentencing court must take care that the process of accumulation into an aggregate sentence does not erode that benefit.
  • Characterising drug supply as a home-run business primarily motivated by funding personal addiction does not eliminate objective seriousness; it remains a relevant contextual factor going to moral culpability rather than a complete answer to the gravity of the offending.
  • In a severity appeal heard concurrently with fresh sentencing proceedings, the District Court may vary the commencement date of the appealed sentence to properly account for pre-sentence custody, even where the original sentence is otherwise confirmed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93T(1), 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33 (Form 1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Road Transport Act 2013 (NSW), s 118(1)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 (Form 1 procedure)
- Flick v R [2023] NSWCCA 197 (Form 1 and intrinsic facts)
- Tukuafu v R [2024] NSWCCA 84 (Form 1, considered alongside Flick)
- R v Cantarakis [2024] NSWDC 650 (co-offender sentenced in related proceedings; parity considerations)