Sentencing Bench Book — Particular offences

Section 23(1A), which was inserted into the Drug Misuse and Trafficking Act by the Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Act 2006, effective 14 July 2006, prohibits the cultivation of prohibited plants by enhanced indoor means. According to the Second Reading Speech, the amendment is “directed towards organised commercial production using residential premises”. Section 23A creates an additional offence where children under the age of 16 are exposed to that cultivation process, with higher maximum penalties outlined in s 33AD. The commercial and large commercial quantities set for indoor cannabis production are lower than those for outdoor cultivation to reflect the higher yields produced by this method. For indoor production, the commercial quantity is between 50 and 199 plants, and the large commercial quantity is 200 or more plants.

Any assumption in former years that marijuana was a “recreational drug”, with lower addictive qualities and fewer potential health dangers has been called into serious question: R v Nguyen [2006] NSWCCA 389. McClellan CJ at CL said at [54]:

The cultivation of cannabis for profit will usually attract a term of imprisonment, unless there are exceptional circumstances: R v Godden [2005] NSWCCA 160 at [28]; R v Puke (unrep, 12/9/97, NSWCCA).

The profit sought to be made is highly relevant to the assessment of an offender’s criminality in a case of cultivation. While an offender might intend to sell the plants when they matured, rather than at the time of his arrest, the criminal activity was being conducted with a view to making a profit: Nguyen v R [2007] NSWCCA 94 at [19]–[21]; Gattellari v R [2007] NSWCCA 5 at [7].

An offender arrested at an early, rather than a late stage of cultivation is not entitled to any particular mitigation as a result: R v Barbara (unrep, 24/2/97, NSWCCA); R v Field (unrep, 2/5/96, NSWCCA). In Nguyen v R [2007] NSWCCA 94 the size of the plants ranged from 15 to 40 cm. The court inferred that the applicant intended “to cultivate the plants to as profitable a stage as possible”: Nguyen v R at [21].

A finding of fact at sentence that the cultivation was for personal use rather than for profit generally reduces the objective seriousness of the offence: R v Seman (unrep, 12/5/92, NSWCCA). A proposition that the cultivation was for a commercial or other purpose must be proven beyond reasonable doubt by the Crown. In R v Seman, the Crown failed to negative the applicant’s claim that 137 plants (less than a commercial quantity) were for personal use. Wood J, as he then was, concluded that a custodial sentence nevertheless remained appropriate.

A finding that cultivation was for personal use is not itself an answer to the offence: R v Emerton (unrep, 26/6/96, NSWCCA). The court found in R v Seman that:

In R v Emerton the applicant successfully argued that 321 plants, amounting to a commercial quantity, were grown for his personal use. Priestley JA noted the unusual subjective circumstances in the case, and cautioned:

Where it is accepted that cultivation is for personal use, the quantity of plants cultivated is significant. In R v Dopson (2003) 141 A Crim R 302 at [30], the offender cultivated more than double the commercial quantity of cannabis plants. This invited the consideration that even if it was not the offender’s intention to disseminate the drugs into the community, there was a risk that such dissemination would occur.

The horticultural skills provided by an offender are also relevant to assessing objective seriousness: R v Mangano [2006] NSWCCA 35. In that case, the respondent helped to clear the crop site, provided advice on preparation of the soil and assisted with cloning “mother” plants. His primary role was to supply food and materials to other workers. Basten JA (Howie and Hall JJ agreeing) said at [26]:

Sentencing statistics are of limited usefulness in cultivation cases, as there is no distinction drawn between those minor cases where a few plants are grown for private use and those cases where there is cultivation for profit: R v Edwards [1999] NSWCCA 411. The court in R v Godden [2005] NSWCCA 160 at [22] said that prior decisions of the Court of Criminal Appeal provide some guidance in appeal cases in determining “whether or not … there was a legitimate exercise of sentencing discretion”.

R v Godden has since taken on some significance. Hall J at [22] reviewed the sentencing statistics applicable to the offence and a number of prior authorities. The court reduced Godden’s sentence to two years and two months with a non-parole period of 15 months. The crime involved cultivating 319 plants (varying between seedlings and some 1.5 metres high) and was described as a highly professional hydroponic cultivation. The pattern of sentencing identified in R v Godden was at least part of the reason the court formed the view that the sentence imposed in Quan v R [2006] NSWCCA 382 was manifestly excessive: see [6]–[8]. In Nguyen v R [2007] NSWCCA 94, R v Godden was relied upon by the applicant for the same purpose. The court distinguished R v Godden, with Hulme J querying its overall correctness at [24]–[25]:

McClellan CJ at CL (Hislop J agreeing) said at [1]: “[i]n my opinion the analysis which Hulme J undertakes in this matter is not relevantly inconsistent with the approach of this Court in R v Godden [2005] NSWCCA 160 or Quan v R [2006] NSWCCA 382”.

It is an offence under s 24(1) to manufacture, produce, or knowingly to take part in the manufacture or production of a prohibited drug which carries a penalty (on indictment) of 15 years and/or 2,000 penalty units where the offence involves less than a commercial quantity: s 32(1).

To manufacture, produce, or knowingly to take part in the manufacture or production of not less than the commercial quantity of a prohibited drug is an offence under s 24(2) which carries a penalty of 20 years and/or 3,500 penalty units: s 33(2). Where not less than a “large commercial quantity” is involved the penalty is life imprisonment and/or 5,000 penalty units: s 33(3).

An offence under s 24(2) has a standard non-parole period of 10 years for less than the large commercial quantity of a prohibited drug (not cannabis leaf) and 15 years for not less than the large commercial quantity of a prohibited drug (not cannabis leaf): Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

Section 24(1A) and (2A) create offences, with greater maximum penalties outlined in s 33AC, of exposing a child to the manufacture or production of prohibited drugs.

The manufacture of drugs is a serious offence, involving a high degree of criminality which calls for condign punishment: R v Reardon (1996) 89 A Crim R 180 at 194. In Walsh v R (2006) 168 A Crim R 237, Grove J said at [63]:

It is an offence under s 24A to possess precursors intended for use in the manufacture or production of prohibited drugs. The penalty for this offence is 10 years imprisonment and/or a fine of 2000 penalty units: s 33AB(1). In R v Cousins (2002) 132 A Crim R 444 at [34], Giles JA noted that “[i]n making specific provision for the offence in question the legislature showed by the maximum sentence that a serious view is to be take of the commission of the offence”. There is no graded scale of quantities required for the specification of this charge, but quantity remains relevant to the offence, in that the element of intended use brings, “particular regard to what would come from the intended use ”: at [35].

Supplying or knowingly taking part in the supply of prohibited drugs is an offence under s 25(1) which carries a penalty of 10 years imprisonment and/or 2000 penalty units where the offence involves less than a commercial quantity and relates to cannabis plant/leaf. In other cases not relating to cannabis plant/leaf, the penalty is 15 years and/or 2000 penalty units: s 32(1).

Supplying or knowingly taking part in the supply of not less than a commercial quantity is an offence under s 25(2) which carries a penalty of 15 years imprisonment and/or 3,500 penalty units where the offence relates to cannabis plant/leaf. In other cases, the penalty is 20 years and/or 3,500 penalty units: s 33(2). Where not less than a “large commercial quantity” is involved the penalty is 20 years imprisonment and/or 5,000 penalty units where the offence relates to cannabis plant/leaf. In other cases, the penalty is life imprisonment and/or 5,000 penalty units: s 33(3).

The threshold for the large commercial quantity of methylamphetamine was halved (from 1 kilogram to 500 grams) by the Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 which commenced on 1 September 2015. The amendment reflects Parliament’s intention that sentences imposed on persons supplying methylamphetamine between 500g and 1kg should be increased: Chong v R [2017] NSWCCA 185 per Basten JA at [18], [31], Schmidt J at [106]. However, caution must be applied to the use of cases decided before Muldrock v The Queen (2011) 244 CLR 120 and prior to the threshold amendment. When such comparisons are sought to be drawn, the wide range of gravity, objective circumstances and differences in the subjective circumstances of the respective offending must also be borne in mind: Chong v R per Schmidt J at [107]; Toole v R (2014) 247 A Crim R 272 at [78].

An offence under s 25(2) has a standard non-parole period of 10 years for less than the large commercial quantity of a prohibited drug (not cannabis leaf) and 15 years for not less than the large commercial quantity of a prohibited drug (not cannabis leaf): Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

It is a specific offence under s 25(1A) and (2A) for a person of or above the age of 18 to supply, or knowingly take part in the supply of, a prohibited drug to a person under the age of 16. The penalties for these offences are the penalties that would otherwise be imposed but increased by one-fifth, or as otherwise outlined in s 33AA.

Section 3 Drug Misuse and Trafficking Act defines “supply”:

Section 29 sets out when possession will be deemed to be for supply as follows:

Where it is accepted that an offender has drugs in his possession for personal use only, a conviction for “deemed supply” is a miscarriage of justice within the terms of s 6(1) Criminal Appeal Act 1912: R v Masri [2005] NSWCCA 330.

In R v Nassif [2005] NSWCCA 38 at [30] the court stated:

Rather, this assessment will depend on the facts of the case: at [30].

A mere temporary transfer of the physical control of the drugs from the owner, with intent to return it to the owner, does not fall within the statutory definition of deemed supply: R v Carey (1990) 50 A Crim R 163; cf R v Blair (2005) 152 A Crim R 462.

The definition of “supply” in the Drug Misuse and Trafficking Act includes offering or agreeing to supply. The objective seriousness of any activity falling within “supply” must depend on the particular evidence in the case, in the absence of a general “hierarchy of seriousness attaching to one or other of the activities that may constitute a ‘supply’”: Vu v R [2006] NSWCCA 188 at [87]–[89], citing with approval R v Nassif [2005] NSWCCA 38 at [30]; McKibben v R [2007] NSWCCA 89 at [16]. There is no reason in principle why a genuine agreement to supply drugs should be regarded as any less serious than a proven act of supply: R v Smith [2002] NSWCCA 378 at [16].

Hall J concluded in Vu v R at [88] that “… agreements to supply or offers to supply prohibited drugs each constitute transactional activities that play an important and essential role in the chain of drug trafficking”. No generalised statement can be made about the relative seriousness of differing forms of supply: McKibben v R at [16].

In Vu v R, Hall J set out at [89] the following factors relevant to determining the objective seriousness of an offence under s 25(2) involving an offer to supply:

In R v Kalpaxis (2001) 122 A Crim R 320, the offender offered to supply a commercial quantity of cocaine but the sentencing judge found that the offer was not genuine, that no supply took place and that the offender did not have the ability to supply the drug. The court held it was an “exceptional and extraordinary” case that fell within the less serious spectrum of an offence under s 25 and dismissed a Crown appeal against a suspended sentence.

Although the criminality for drug “rip-offs” purporting to be actual drug deals may be less than where there is a genuine plan to supply drugs, drug rip-offs are regarded by the courts as objectively serious and remain subject to the penalties applicable to an offence contrary to s 25: R v Kijurina [2017] NSWCCA 117 at [99]; R v Yaghi (2002) 133 A Crim R 490 at [16]–[18]. This is partly because, unlike most fraud or false pretences, the victim of a drug rip-off is unlikely to report the matter to police and as a result, subject to any violent retribution, the offender is likely to escape without punishment. There is a significant community interest in not allowing the drug trade to be used as a vehicle for fraudulent activities of this kind, and also in deterring the kind of violent response which such conduct can provoke: R v Yaghi at [17]–[18]. It is therefore of utmost importance that courts impose sentences of sufficient severity to ensure others who may be tempted to engage in drug rip-offs are dissuaded. It is only in exceptional cases that a non-custodial sentence will be appropriate: R v Kijurina at [103].

A person who, on three or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward commits an offence under s 25A. It is not necessary for the same prohibited drug to be supplied on each of the occasions: s 25A(2). The maximum penalty for this offence is imprisonment for 20 years and/or 3500 penalty units.

An offence under s 25A is generally considered to be more serious than an offence under s 25: Reed v R [2007] NSWCCA 457 at [35]; R v CBK (2002) 135 A Crim R 260 at [56].

In Fayd’herbe v R [2007] NSWCCA 20, Adams J reviewed the authorities regarding s 25A, citing the following passage from R v CBK at [18] where Wood CJ at CL said at [57]:

The quantity of drugs is not an ingredient of a charge under s 25A. The section is directed to repetition, system and organisation, that is, the business operation of supplying prohibited drugs: R v Giang [2005] NSWCCA 387 at [18]–[19]. The objective criminality of any offence under s 25A is determined by reference to those features, not merely the number of instances of supply, nor the individual quantities supplied: R v Hoon [2000] NSWCCA 137 at [16]. The quantity of the drug is not irrelevant, nor are repetition, system and organisation of greater importance — they take their place beside the number and quantities of individual incidences of supply: R v MRN [2006] NSWCCA 155 at [142]–[145].

Although quantity is not the only factor involved in assessing the objective seriousness of the offence, it remains significant: R v Smiroldo (2000) 112 A Crim R 47 at [14]; Smith v R [2007] NSWCCA 138 at [53]. In Mirza v R [2007] NSWCCA 248, an unusually large amount of drugs was involved for an offence under s 25A. This was an important fact in determining the seriousness of the crime: Mirza v R at [12]. Howie J stated at [11]:

He added at [12] that, “[t]here will clearly be cases where the amount of the drug supplied is determinate of the sentence”.

It is relevant to consider the magnitude of the operation. Subject to the principle in De Simoni v The Queen (1981) 147 CLR 383 the court may anticipate that most offenders charged with this offence will have been involved in the supply of a greater quantity of drugs than that which was the subject of the charge.

R v Kairouz [2005] NSWCCA 247 concerned a highly organised drug supply operation in which the applicants played a leading role. Emphasising the seriousness of the case, Wood CJ at CL said at [90]:

Section 4 the Drug Misuse and Trafficking Act provides that:

While the purity of a drug is directly related to quantity and, therefore, to the applicable statutory maximum penalty for an offence in Commonwealth legislation, in relation to offences under the Drug Misuse and Trafficking Act the reference in s 4 to a “substance containing any proportion of the prohibited drug” indicates that there is no such nexus. Instead, purity is one of the factors considered when determining whether an offence falls into the mid-range of seriousness: R v Blair (2005) 152 A Crim R 462 at [56]. The fact a drug is of low purity does not require a sentencing judge to assess the objective seriousness of the offence as below mid-range. Other factors are also relevant in determining the objective seriousness of the offence: Fato v R [2017] NSWCCA 190 at [44], [46]. If judicial notice is to be taken of drug purity levels they must be beyond argument: Ma v R [2007] NSWCCA 240 at [54].

In R v Shi [2004] NSWCCA 135 the sentencing judge found that the unusually high level of purity of the drug methylamphetamine — 84.5% — was an aggravating factor under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999, as it had considerable destructive potential and the offence was accordingly one committed without regard for public safety.

The quantity of drugs is not the sole, or principal, determinant for sentencing in relation to drug offences. More important is the role of the offender and the level of his or her participation in the offence. This is subject to the fact that there is a gradation of seriousness related to quantity reflected by the increase in penalty as the quantity of the drug becomes commercial or large commercial quantities: R v Macdonnell (2002) 128 A Crim R 44 at [33].

In Markarian v The Queen (2005) 228 CLR 357 the High Court held that the Court of Criminal Appeal erred in placing too great an emphasis upon the quantity of drug involved, without regard to the facts of the case. Gleeson CJ, Gummow, Hayne and Callinan JJ said at [33]:

The Drug Misuse and Trafficking Act adopts a quantity-based penalty regime in Schedule 1. It makes no other distinction between drug types. Since R v Nai Poon (2003) 56 NSWLR 284 there is no longer any judicially constructed gradation of penalties based on the perceived harm caused by different types of drugs. It was said in R v Dang [2005] NSWCCA 430 at [29] that the Court of Criminal Appeal:

This approach has also been adopted at the federal level in Adams v The Queen (2008) 234 CLR 143 at [10] see [65-130].

The offender’s role and the level of criminality involved is more important in determining a sentence than the quantity of drugs involved, which is not the sole or even principal determinant: Melikian v R [2008] NSWCCA 156 at [42]; R v MacDonnell (2002) 128 A Crim R 44 at [33]. For supply offences an offender’s role is not to be determined by the use of short hand labels but rather by assessing what his or her involvement was in the steps taken to effect supply: Paxton v R (2011) 219 A Crim R 104 at [135] applying The Queen v Olbrich (1999) 199 CLR 270 at [14]. General descriptions of types of participation must not obscure the assessment of what the offender did: The Queen v Olbrich at [19]. In some cases it will be difficult for a court to determine an offender’s role for lack of evidence: Paxton v R at [135]. Where the offender’s role is not known the court is not obliged to find facts favourable to the offender or to accept his or her version of events: The Queen v Olbrich at [27]–[28].

The term “principal” is often used to describe an offender’s role. Simpson J, in Nguyen v R (2011) 208 A Crim R 432 (Davies J agreeing at [18]), in the context of an offence cultivating a large commercial quantity of cannabis, said of the definition of principal at [4]:

An offender who combines the role of a principal and leader of an extensive and well organised network, distributing large commercial quantities of prohibited drugs, exhibits criminality of a high order: R v Kalache (2000) 111 A Crim R 152.

In R v Shi [2004] NSWCCA 135 Wood CJ at CL, with whom Spigelman CJ and Simpson J agreed, emphasised at [34] the importance of giving consideration to:

The court in R v Shi concluded that the role of the offender is germane to the assessment of the objective seriousness of the offence: see also R v Blair (2005) 152 A Crim R 462.

Where the offender “flagrantly ignores previous and extant sentences”, any leniency that may be afforded to him or her in recognition of a lesser role in the supply chain, may be of less importance than personal deterrence and the protection of society from an otherwise continuing disobedience of the law: Young v R [2007] NSWCCA 114 at [23].

In R v Giammaria [2006] NSWCCA 63, in the context of “seriously culpable” conduct by two non-principals in cultivation offences, Sully J said at [15]:

Good character also carries less weight in offences involving drugs than many other offences: R v Cheikh [2004] NSWCCA 448 at [50]; R v Leroy [1984] 2 NSWLR 441. This principle is usually of more relevance in relation to drug couriers. Street CJ (Glass JA and Yeldham J agreeing) said in R v Leroy at 446–467:

However, caution is required before adopting the statement in R v Leroy as a general principle: Chong v R [2017] NSWCCA 185 per Basten JA at [28]. In Chong v R there was no suggestion that the offender was “selected” by the organisers of the criminal activity due to his lack of a prior record. What may be highly relevant with respect to drug importations may be of less relevance to drug supply internally, when the mode of travel is unlikely to attract attention to the individual traveller: Chong v R at [28].

Prior character is, however, relevant to prospects of rehabilitation. An offender’s prior good character and lack of criminal history are to be taken into account on sentencing, although they have significantly less weight where the offence involves deliberate and planned criminality: Ha v R [2008] NSWCCA 141 at [43].

An offender who is not a drug user but supplies drugs out of greed was placed in the worst category of suppliers: Nguyen v R [2007] NSWCCA 15 at [46]; R v Liang (unrep, 2/6/95, NSWCCA); R v Ramos (2000) 112 A Crim R 339; R v Kalache (2000) 111 A Crim R 152. (The appropriate terminology following The Queen v Kilic (2016) 259 CLR 256 must be “worst case”: see [10-005] Cases that attract the maximum.)

However, addiction to drugs is generally not, of itself, a matter of mitigation at sentence: R v Henry (1999) 46 NSWLR 346 at [178], applied in Ma v R [2007] NSWCCA 240 at [79]; R v Vu [2006] NSWCCA 188 at [73]. The relevant principles identified in R v Henry at [273] are:

In R v Tulloh (unrep, 16/9/93, NSWCCA) Hunt CJ at CL held that a user/dealer who sells primarily to feed his or her own habit is at a lower level of criminality than a trafficker motivated by greed. The weight to be attributed to an offender’s drug addiction is diminished when considering operations above street level: R v Bernath [1997] 1 VR 271 per Callaway JA, with whom Winneke P and Brooking JA agreed; applied in R v Haidar [2004] NSWCCA 350.

However, Wood CJ at CL stated in R v Kairouz [2005] NSWCCA 247 at [98] that the decision in R v Tulloh does not provide support for the bald proposition that an offender’s motivation to participate in drug trafficking, arising from the need to feed a drug habit, rather than greed, placed him at the lower level of criminality. In R v Tulloh Hunt CJ at CL noted that every case depends on its circumstances and that, irrespective of whether the motivation for trafficking is need or greed, the overriding principle is that a custodial sentence is normal for trafficking to any substantial degree, regardless of whether or not a profit has been obtained.

In R v Dang [2005] NSWCCA 430 Howie J, with whom Studdert and Whealy JJ agreed, found that the offender had been motivated by his addiction to cocaine, even though he had become addicted as a matter of choice. His Honour noted at [32] that the offender’s role was that of a middleman who was to receive money and drugs, and:

Nevertheless, the offence fell below the mid range of objective seriousness, as the offender was not a principal and only became involved in a single instance of supply because of his addiction to cocaine.

Assistance to authorities, while relevant in many sentencing contexts, is of particular importance in sentencing drug offenders. In R v Perrier (1990) 59 A Crim R 164, McGarvie J at 171 referred to comments of Stewart J in the Report of the Royal Commission of Inquiry into Drug Trafficking, 1983, where his Honour expressed the view (at 562) that the most effective means of destroying drug trafficking enterprises is to obtain information from minor figures that will lead to the detection of principals. McGarvie J said at 171:

See further Power to Reduce Penalties for Assistance to Authorities for constraints on the application of the discount for such assistance at [12-220].

In R v Hockey [2006] NSWCCA 146, Adams J suggested at [15] that s 21A(2)(g) cannot be given any additional significance as an aggravating factor in the absence of any evidence that particular harm was caused, although he notes that his view is “apparently inconsistent” with R v Way (2004) 60 NSWLR 168. McClellan CJ at CL and Johnson J reserved their position on this issue.

Price J said in Mansour v R (2011) 209 A Crim R 275 at [49]–[50]:

Section 21A(2)(i) cannot be taken into account as an aggravating factor for the offences referred to above unless its nature or extent in the particular case is unusual or “exceeds the norm”: Mansour at [51]; R v Elyard [2006] NSWCCA 43 at [14]–[16] applied.

Previous authorities on this subject, such as R v Way (2004) 60 NSWLR 168 at [172]; Ward v R (2007) 168 A Crim R 545 at [28] (which applied R v Way); R v Lilley (2004) 150 A Crim R 591 at [53]; and R v Aslan [2005] NSWCCA 121 at [16], are no longer good law.

In R v Ancuta [2005] NSWCCA 275, a case where the offender was convicted of supply of a commercial quantity of drugs, the sentencing judge erred in holding that the potential heroin users were vulnerable victims within the terms of s 21A(2)(l). Brownie AJA said at [13]:

Here, the police took possession of the heroin before the applicant had an opportunity to resell it, so that there was no victim of the particular offence with which the offender was charged.

An offence may be aggravated under s 21A(2)(m) where the offence involves a number of allegations of criminal acts that are part of a single course of criminal conduct, such as multiple instances of supplying drugs over a lengthy period of time charged as one offence under s 25 Drug Misuse and Trafficking Act: R v Tadrosse (2005) 65 NSWLR 740 at [29].

An element of an offence under s 25A is that it involves multiple acts of criminality: R v Tadrosse at [29] and “[w]hen sentencing for such an offence, the court must bear in mind the prohibition against taking into account as a matter of aggravation that which is an element of the offence charged”. It remains open to a judge sentencing for an offence under s 25A to take into account as an aggravating factor under s 21A(2)(m) that supply took place on significantly more than three occasions: Smith v R [2007] NSWCCA 138 at [40].

Tadrosse was applied in Cicciarello v R [2009] NSWCCA 272 where multiple criminal acts were the foundation for the more serious offence with which the appellant was charged: at [19]. When such a series of criminal acts leads to a more serious criminal charge being properly laid against an offender, the prohibition against double counting contained in s 21A is undermined if the same series of criminal acts is taken into account as an additional aggravating factor under s 21A(2)(m): Cicciarello at [19].

The seriousness of a drug offence may be aggravated where the amount of planning involved exceeds that ordinarily expected of an offence of that kind: Stokes v R [2008] NSWCCA 123 at [32]; Fahs v R [2007] NSWCCA 26 at [21]–[22]; Hewitt v R (2007) 180 A Crim R 306 at [24], [42]; R v Yildiz (2006) 160 A Crim R 218 at [37]. In Hewitt v R, Hall J reviewed the relevant authorities at [25]; see further at [11-190]. For an offence of knowingly take part in the supply of a large commercial quantity of a prohibited drug, it is almost inevitably the case that inherent characteristics of that class of offence are a level of planning and financial gain: Wat v R [2017] NSWCCA 62 at [44]. These inherent characteristics are not to be treated as aggravating factors unless such financial gain and planning is significant, that is, more than might be expected in the lowest level of offending for this type of offence: Wat v R at [44]; Prculovski v R [2010] NSWCCA 274 at [43]; Farkas v R (2014) 243 A Crim R 388 at [62].

The court applied Fahs v R in Reaburn v R (2007) 169 A Crim R 337 at [44] and held that the relatively low level of planning in the supply offences would not meet the description in s 21A(2)(n). In R v Kazzi [2008] NSWCCA 77 the sentencing judge declined to find that the offences were aggravated by s 21A(2)(n) on the ground that planning was inherent in the offences involving the supply of commercial or large commercial quantities of drugs. It was open to his Honour to consider that the degree of planning was not so unusual as to amount to an aggravating factor: at [46].

In Stokes v R at [34]–[36] the offence involved more extensive organisation and planning since the offender was not dealing at a level necessary to fund his own habit, he supplied a range of drugs and he made provisions for supply while he was absent. In Hutton v R [2008] NSWCCA 99 at [22]–[23] the degree of planning also exceeded that normally expected for an offence of this kind. Planning included the organisation of interstate flights, the booking of the hotel room, contact with co-offenders, coded telephone conversations and the concealment of drugs on the offender. Similarly, in Wat v R the sentencing judge did not err by taking into account that the offence was aggravated under s 21A(2)(n) in circumstances where the level of planning was elaborate; the whole operation was sophisticated, well-organised and conducted by a transnational crime syndicate: Wat v R at [46].

Financial gain can be an element of an offence against the Act (for example, s 25A) or an inherent characteristic (as for s 25(2)): for the latter, see Wat v R [2017] NSWCCA 62 at [44]. Since financial gain is an ingredient of an offence of ongoing supply under s 25A, it is a double counting error to further apply s 21A(2)(o): Bowden v R [2009] NSWCCA 45 at [65]. However, where the financial gain is significant, that is, more than might be expected in the lowest level of offending for that type of drug supply offence, it may be taken into account as an aggravating factor under s 21A(2)(o): Prculovski v R [2010] NSWCCA 274 at [43] applied in Wat v R at [44], [48]; Farkas v R (2014) 243 A Crim R 388 at [62].

In Kassoua v R [2017] NSWCCA 307 at [13], Basten JA (Price J agreeing) emphasised that the “unremarkable point” of Howie AJ in Prculovski v R at [43] was made in the context of an offence under s 25A(1) where “financial or material reward” was an element of the offence. In these circumstances, it is still possible to take financial gain into account so long as it was a “significant” level of gain or reward for the purpose of assessing the objective seriousness of the offending. However, Basten JA cautioned against generalising Howie AJ’s observation and applying it in cases where financial reward is not an element of the offence. Basten JA said at [13]:

Basten JA concluded that in determining the objective seriousness of the offence the judge had, correctly, paid specific regard to a range of factors one of which was the inference of financial reward: Kassoua v R at [15]. Walton J (Price J agreeing) held that the sentencing judge did not have regard to “financial gain” as an aggravating factor and the finding that the offender had an expectation of substantial financial gain was one of a number of factual findings informing the judge’s assessment of the relative seriousness of the offence pursuant to s 21A(1)(c) Crimes (Sentencing Procedure) Act and did not constitute a finding of aggravation: Kassoua v R at [60].

These principles were also discussed in Huang v R [2017] NSWCCA 312 but in that case the court concluded that given the paucity of evidence regarding financial gain, it was an error for the judge to find the financial reward went beyond what was inherent in the offence: Huang v R at [60]–[61].

See discussion at Section 21A(3)(d) — the offender was acting under duress at [11-240].