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District Court 19 September 2025

R v Forbes

[2025] NSWDC 384

DrugsFraud & dishonestyFirearms & weapons

Citation: R v Forbes [2025] NSWDC 384
Court: District Court of New South Wales
Date: 19 September 2025
Judge: Priestley SC DCJ

Background

The offender appeared for sentence on seven offences committed between February and April 2024. The charges spanned three counts of ongoing drug supply under s 25A of the Drug Misuse and Trafficking Act, possession of an unregistered pistol, possession of a prohibited weapon (a butterfly knife) contrary to a weapons prohibition order, dealing with proceeds of crime, and a separate supply offence involving 223 grams of methylamphetamine found at his residence.

At the time of the offending, the offender was subject to both a firearms prohibition order and a weapons prohibition order, each served on him in December 2020. Police had monitored his mobile phone from December 2023, revealing a pattern of organising and facilitating drug transactions across 25 separate supplies to a small number of repeat purchasers.

Several Form 1 matters accompanied the primary charges. Two procedural complications arose at the outset: one Form 1 offence carried a higher maximum sentence than the primary offence it accompanied, and the proceeds of crime charge related to money that was the direct product of the drug supply already charged.

  • Whether the Crown's characterisation of the offender as operating above the street-level dealer tier was established beyond reasonable doubt on the agreed facts
  • How to treat Form 1 matters where the listed offence carries a higher maximum penalty than the primary charge, or where the Form 1 conduct adds no separate criminality
  • Whether the proceeds of crime charge gave rise to any additional criminality beyond the drug supply offences
  • How the totality and concurrency principles applied across seven offences forming a continuous course of conduct spanning approximately three months
  • What aggregate sentence, including non-parole period, was appropriate given the offender's subjective circumstances

Decision

Objective seriousness and the "hierarchy" question. The Crown submitted that the offender occupied a position above street-level dealing, relying on the quantities supplied, the frequency of repeat supplies to the same purchasers, the discovery of 216 grams of heroin and 223 grams of methylamphetamine at his residence, and the cash holding of $7,150. His Honour accepted the submission was open on the agreed facts but found the Crown had not established it to the requisite standard of beyond reasonable doubt. The court noted, among other matters, that a purchaser receiving 3.5 grams of methylamphetamine eight days apart could conceivably have consumed the prior amount personally, and that no evidence was led as to the "ordinary" street-level supply quantity. The three s 25A offences were assessed as below or similar to mid-range objective seriousness.

Form 1 complications. Where a Form 1 matter carries a greater maximum penalty than the primary offence, the sentencing exercise must remain focused on the primary offence, and any penalty must remain proportionate to it. On the facts here, the Crown conceded that the Form 1 weapon offence added no criminality to the primary weapons prohibition order charge, and the court confirmed it would produce no increase in penalty for that sequence. The butterfly knife charge (sequence 32) was disposed of by way of s 10A, recording a conviction without further penalty.

Proceeds of crime. The court drew the inference that the $7,150 represented the proceeds of the drug supplies already charged. Citing Redfern v R [2012] NSWCCA 178, his Honour accepted the Crown's concession that no additional criminality attached to possessing those proceeds. The charge was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 (CSPA).

Aggregate sentence and totality. The offending occurred over approximately three months and was treated as a continuing course of conduct. Four of the six substantive offences represented the same activity of drug supply. Applying totality principles, the court structured significant concurrency into the aggregate sentence. A 25 percent discount was applied for the offender's plea of guilty. The final aggregate sentence was four years' non-parole period with a three-year balance of term, producing a total term of seven years. The court noted that the resulting period under supervision was warranted given the offender's long-term drug dependency and age.

Orders Made

  • Sequence 34 (knowingly deal with proceeds of crime): charge dismissed under s 10 CSPA
  • Sequence 32 (possess prohibited weapon contrary to prohibition order, butterfly knife): conviction recorded without further penalty pursuant to s 10A CSPA
  • Sequences 27, 28, 29, 38 and 41: offender convicted
  • Aggregate sentence of imprisonment imposed with a non-parole period of 4 years commencing 17 May 2024 and expiring 16 May 2028, with a balance of term of 3 years expiring 16 May 2031
  • Indicative sentences for each convicted sequence were set after application of the 25% discount and, where applicable, taking Form 1 matters into account

Key Takeaways

  • The District Court confirmed that, where a Form 1 matter carries a greater maximum penalty than the primary offence, the sentencing exercise must remain proportionate to the primary charge and the Form 1 matter cannot drive the penalty above what that primary offence warrants.
  • Where a Form 1 offence and the primary offence concern identical conduct, the Form 1 listing adds nothing to the sentencing exercise and will produce no increase in penalty.
  • A submission that an offender occupied a position above street-level in a drug supply hierarchy must be proved beyond reasonable doubt, even where it is based entirely on agreed facts. An inference that is plausible does not automatically satisfy that standard.
  • Under Redfern v R, possessing the proceeds of drug supply already charged as a separate offence will not, without more, constitute additional criminality, making a s 10 dismissal an available outcome for the proceeds charge.
  • Offending across multiple drug supply and weapons charges occurring within a three-month period and arising from a single continuing course of conduct warrants application of the totality principle, producing significant concurrency in the aggregate sentence structure.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A, 25A(1)
- Crimes Act 1900 (NSW), s 193B(2)
- Firearms Act 1996 (NSW), ss 36(1), 73(1), 74(1), 74(3)
- Weapons Prohibition Act 1998 (NSW), ss 7(1), 33(1), 34(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 10A

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Redfern v R [2012] NSWCCA 178
- Dungay v R [2020] NSWCCA 209
- Wong v The Queen [2001] 207 CLR 584