Drug Misuse and Trafficking Act 1985 (NSW) offences

[19-800] Introduction

The Drug Misuse and Trafficking Act 1985 prohibits the cultivation, manufacture, supply, possession and use of certain drugs. The Court of Criminal Appeal has said many times that the need for general deterrence is high in cases involving dealing in and supplying prohibited drugs: R v Ha [2004] NSWCCA 386 at [20]. The court has also said “[t]he social consequences of the criminal trade in prohibited drugs are very substantial indeed, including corruption, the undermining of legitimate businesses and a serious level of violence …”: R v Colin [2000] NSWCCA 236 at [15], quoted with approval in R v Sciberras (2006) 165 A Crim R 532 at [48].

The most common offences dealt with on indictment are under s 23, the cultivation of prohibited plants; s 24, the manufacture of prohibited drugs; and s 25, supply. Section 25A creates the offence of supplying prohibited drugs on an ongoing basis.

Unless otherwise specified, references to sections below are references to sections of the Drug Misuse and Trafficking Act.

[19-810] Offences with respect to prohibited plants

The cultivation, supply or possession of prohibited plants is an offence under s 23(1) which carries a penalty (on indictment) of 10 years imprisonment and/or 2,000 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 2,000 penalty units: s 32(1).

The cultivation, supply or possession of not less than the commercial quantity is an offence under s 23(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 3500 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).

Offences under s 23(2) that involve not less than a large commercial quantity, and committed on or after the commencement of the Crimes (Sentencing Procedure) Amendment Act 2007 (1 January 2008) have a standard non-parole period of 10 years: Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

Cultivation by “enhanced indoor means”

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.

Marijuana not to be regarded as a “recreational drug”

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]:

It is now recognised that marijuana can have very serious consequences for users with destructive potential for the lives of young persons. The legislature has recognised this damaging potential by providing a maximum penalty of twenty years for the present offence [under s 25(2)(a)].

Cultivation for profit

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].

Stage of cultivation

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].

Growing plants for personal use

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 the existing state of the law it was not an answer that the applicant was growing the plants purely for his own use; nor were the objective circumstances mitigated by the fact that the applicant had become unwilling to pay the market price for the drug which it was his custom to use. Those who elect to dabble in drugs whether as growers, users or otherwise must expect punishment which contains a deterrent element.

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:

Of course, in most cases, the cultivation of a quantity no less than a commercial quantity of cannabis is very likely to lead, correctly, to the inference that the grower or the cultivator was intending to make commercial use of the product of the growing.

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.

Horticultural skills

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]:

[T]he Respondent was more than a farm labourer and played a significant horticultural role, not only in the plantation the subject of the primary charge, but also in helping to establish the [other] plantations.

Use of statistics and prior decisions

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]:

to punish deliberate criminality yielding a crop with a street value of over half a million dollars with a penalty of only that imposed on the Applicant [30 months] is not calculated to inspire confidence in the sentencing process and makes unsurprising the fact that sentences to date do not seem to have operated as a major deterrent to the cultivation of marijuana.

If the effect of R v Godden is to deny the logic and consequences of the above approach then, with respect to the experienced judges who decided it, one would have to query its correctness and, possibly, that of the decisions on which it was based. The same observation may be made in respect of the decision of Quan v R [2006] NSWCCA 382 to which the Court was also referred.

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”.

[19-820] Manufacture

Section 24 — Manufacture and production of prohibited drugs

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.

Sections 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]:

Whilst it is frequently the case that crimes of drug trafficking involve numbers, even sometimes large numbers, of participants in various phases, it is obvious that the chemist who brings a drug into existence is culpable to a high degree…

Section 24A — Possession of precursors for manufacture or production of prohibited drugs

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].

[19-830] Supply

Section 25 — Supply of prohibited drugs

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 ss 25(1A) and 25(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.

Defining “supply” and “deemed supply”

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

“supply” includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.

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

A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless:

(a) 

the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or

(b) 

except where the prohibited drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin or 6-monoacetylmorphine or any other acetylated derivatives of morphine, the person proves that he or she obtained possession of the prohibited drug on and in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary surgeon.

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.

Attempting to supply

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

an attempt to receive drugs for supply is not necessarily to be categorised as less objectively serious than an offence of supply constituted, for example, by an agreement to supply the same quantity of drugs.

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.

Offering or agreeing to supply

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:

  • The terms of the offer, in particular, as to the quantity of a drug, its price, etc.

  • Whether a particular offer is an isolated one or whether it occurs in the context of an ongoing supply of prohibited drugs.

  • Whether, and if so, the extent to which the offer is motivated by reasons of commercial gain or greed.

  • Whether the offeror at all material times had the intention to fulfil the offer.

  • Whether the offeror had the capacity to fulfil the offer to supply.

  • Whether the offeror attempts to fulfil the offer. If not, whether any failure to perform was the result of a decision by the person concerned not to supply or whether it was due to some intervening or extraneous circumstances.

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.

Drug “rip-offs”

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].

[19-835] Supply and the imposition of full-time custody

Sentencing offenders charged with drug supply offences must now be undertaken in accordance with the guidance provided by the five-judge bench decision in Parente v R [2017] NSWCCA 284 which is discussed in further detail below. In summary, the judgment in Parente v R reminds sentencing courts to approach the task of sentencing offenders charged with drug supply offences in accordance with ordinary sentencing principles and not by starting from the assumption that a sentence of full-time imprisonment is required.

In Robertson v R [2017] NSWCCA 205, Simpson JA (Harrison and Davies JJ agreeing) cast significant doubt on the proposition, derived from R v Clark (unrep, 15/3/90, NSWCCA), that drug trafficking to a substantial degree ordinarily required a sentence of full-time imprisonment unless there were exceptional circumstances. Simpson JA observed that the peremptory terms in which R v Clark, and the cases following had been expressed, may be incompatible with the proper exercise of a judicial sentencing discretion and a number of statements made by the High Court but that was a matter to be decided by a bench of five judges of the CCA or the High Court: Robertson v R at [101].

A five-judge bench was convened in Parente v R to consider the correctness of the “principle” in R v Clark. The court concluded the principle should no longer be applied in sentencing for drug supply cases: Parente v R at [106].

The court held in Parente v R at [107], that sentencing in drug supply cases should be approached consistently with general sentencing principles (discussed at [93]–[103]) and, at [107]–[115], emphasised the following relevant matters to which sentencing courts must have regard:

  • The purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act which include reference to deterrence (in s 3A(b)) and protection of the community (in s 3A(c)). The importance of general deterrence in drug supply cases means a consistent message of deterrence from sentencing judges is necessary.

  • Further, protection of the community will usually be a significant factor, having regard to the social impact of drug use, particularly as an underlying cause of other criminal offending.

  • The maximum penalty and any standard non-parole period, which are legislative guideposts, are set at a high level for drug supply offences: Markarian v The Queen (2005) 228 CLR 357 at [31].

Importantly, the court at [112], approved the following statement by Simpson JA in Robertson v R at [50]:

[I]t may be accepted that examination and analysis of sentencing practices establishes that, where the facts of an offence demonstrate drug dealing “to a substantial degree”, a sentence of imprisonment will ordinarily be imposed. Moreover, recognition of the serious social implications of drug dealing (reflected, if in nothing else, in the maximum prescribed sentences) suggests that, in the ordinary case, a sentence other than imprisonment will fail to meet sentencing objectives.

A judge must not sentence an offender to imprisonment unless satisfied that, having considered all possible alternatives, no other penalty is appropriate: Parente v R at [113]; s 5(1) Crimes (Sentencing Procedure) Act. This involves consideration of the possibility of options such as a fine and other sentencing options [such as, since 24 September 2018, conditional release orders or community corrections orders], rather than of possible alternative ways to serve a sentence of imprisonment: Parente v R at [113]. Full-time custody is therefore the last choice, not the starting point for the imposition of a sentence: West v R [2017] NSWCCA 271 at [60]–[61]. Nothing in s 5 directs a sentencing court which has decided no alternative to imprisonment is viable, to then exclude from consideration any non-custodial means by which the sentence might be served: Robertson v R at [97]; Parente v R at [113]. The approach endorsed in cases such as R v Zamagias [2002] NSWCCA 17 at [22]–[29] and Douar v R (2005) 159 A Crim R 154 at [70]–[72] should be taken. See further Imprisonment as a sanction of last resort at [3-300].

Intensive correction orders may be significantly more onerous than the predecessor of periodic detention: Parente v R at [89]. An ICO should be given full, fair and genuine consideration by the court in sentencing for drug supply cases: Robertson v R at [38] applying EF v R [2015] NSWCCA 36. A failure of legal representatives to consider and bring to the attention of the court alternatives (to full-time custody) “may be the cause of injustice”: EF v R at [13].

[19-840] Section 25(2) — The standard non-parole period

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. See further Standard Non-Parole Period Offences at [7-890]ff. Cases such as R v Shi [2004] NSWCCA 135, which applied R v Way (2004) 60 NSWLR 168, are no longer good law. The statements in R v Sciberras (2006) A Crim R 532 at [56]–[57] of Hulme J that there was a “strong argument that the legislature intended that the severity of sentences should increase” and Howie J in R v Burgess [2006] NSWCCA 319, at [52] that the “standard non-parole period in respect of this type of offence must have the consequence of increasing the range of sentences [from] that which existed before the provision was introduced” have to be read in light of Muldrock v The Queen (2011) 244 CLR 120 at [31]. The latter court stated that the effect of the introduction of standard non-parole periods will generally be an upward movement in the length of sentences for offences to which they apply. See further Move upwards in the length of non-parole periods? at [7-990].

In R v Blair (2005) 152 A Crim R 462 the court confirmed that the role of the offender was germane to an assessment of the objective seriousness of the offence and the notional range of seriousness. The sentencing judge failed to make an explicit finding as to the applicant’s role.

[19-850] Ongoing supply

Section 25A — Offence of supplying prohibited drugs on an ongoing basis

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]:

An offender charged with a s 25A offence cannot rely upon an argument that the act of supply was an isolated event. Nor can [he] expect to receive a sentence of the kind which may be appropriate for a single offence of supply. Significant sentences must be imposed in such cases in order [to] give effect to the clear legislative intention to discourage the ongoing trade in drugs, which depends entirely upon the availability of a person such as the present applicant.

Assessing objective seriousness under s 25A

The quantity of drugs is 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]:

It may well be the case that the seriousness of this type of offence will not be diminished simply because the overall amount of drug supplied is small. But it does not follow that the amount of drug supplied is an irrelevant matter in determining the seriousness of the particular offence.

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]:

The seriousness of the offence of supplying drugs on an ongoing basis has also been confirmed in other decisions of this court, for example, R v Shi [2004] NSWCCA 135, and more recently R v Le [2005] NSWCCA 162 and in R v Preston [2005] NSWCCA 177. In the present context the further acts of supply which followed those that gave rise to Count 1, which were a continuation of the highly organised and active operation, which the syndicate had established, and of which the Applicants were principals from the outset, were also very serious objectively. In these circumstances heavily deterrent sentences were called for, as appears from the decision of this court in R v Cheikh and Hoete [2004] NSWCCA 448, a case with some similarities in so far as it involved persons well entrenched in an organised distribution network (at least in relation to Cheikh).

Section 25A — General sentencing pattern

Offences under s 25A will also attract a full-time custodial sentence unless there are exceptional circumstances: Fayd’herbe v R [2007] NSWCCA 20 at [18].

In R v Cheikh [2004] NSWCCA 448 Giles JA included in his judgment a schedule setting out sentences imposed between 2000 and 2004 involving multiple supply of amphetamine and similar drugs, as distinct from cocaine and heroin. However, after observing that a brief indication as to the sentence can be misleading because of the mix of offences and offences taken into account (and that each sentence turns on its own particular facts), Giles JA added at [64] that he doubted the existence of a general sentencing pattern:

save in general terms such that lesser criminality brings a lesser sentence and greater criminality brings a greater sentence, and a pattern is difficult to discern when in every case there are many sentencing considerations additional to the level of criminality.

In R v Gidaro [2005] NSWCCA 18, Bell J similarly noted at [28] that care “needs to be taken in extrapolating from material contained in a table of comparative sentences.”

[19-855] Section 26 — Conspiracy offence

It is an offence under s 26 to conspire with another person or persons to commit an indictable offence under Pt 2 Div 2.

In Diesing v R [2007] NSWCCA 326, 4 offenders were charged with a range of drug offences including conspiracy to manufacture a commercial quantity of a prohibited drug under ss 24(2) and 26. The court confirmed that the standard non-parole period relevant to an offence under s 24(2) is not applicable to the conspiracy offence: at [53].

In Diesing v R at [77], it was noted that the principles applicable to sentencing for a conspiracy were recently revisited in Tyler v R (2007) 178 A Crim R 458. The sentence should reflect the organisational nature of a conspiracy in sentencing rather than confining the sentencing discretion to the identification of the role of an offender by specific reference to the physical acts that he or she undertook. Simpson J said in Tyler v R at [83]:

It would be quite artificial, and contrary to the very concept of a conspiracy, to dissect with precision the physical acts of each of the conspirators, and to sentence that conspirator for those acts alone.

The court emphasised in Diesing v R at [80] that their findings:

do not seek to punish the applicant for offences with which he was not charged … They reflect upon the degree of the criminality involved in the applicant’s participation as a principle in a conspiracy, extending over five months and constituting a large-scale commercial operation spanning two states.

[19-860] Supplying to undercover police

While it is relevant to take into account the fact that drugs supplied to undercover police will not be disseminated into the community, “[o]f itself this is usually unlikely to lead to other than a very minor diminution of culpability”: R v Chan [1999] NSWCCA 103 at [21]. Where a charge of supplying drugs has arisen out of circumstances in which the drug has been acquired by a person cooperating with police, it is open to a sentencing judge to give no weight or very slight weight to the consideration that the supplied drugs have not been disseminated into the community: Taysavang v R [2017] NSWCCA 146 at [50]; Truong v R [2006] NSWCCA 318 at [26]. The prevailing consideration, where drug supply has been foiled, is that the offender fully intended the drugs would be disseminated and it was no act of the offender which stood in the way of such dissemination: Taysavang v R at [49]; Hristovski v R [2010] NSWCCA 129 at [41]; R v Achurch (2011) 216 A Crim R 152 at [97]. The weight to be given in such circumstances will vary from cases to case: Taysavang v R at [51]; R v Achurch at [97].

However, compare the earlier case of R v DW (2012) 221 A Crim R 63, where RS Hulme J (Hall J agreeing) did not accept that the impact of this factor upon sentence should be slight or very minor: at [115]–[117].

In R v Gao [2007] NSWCCA 343 the court emphasised that it is not a matter of principle that supplying drugs to undercover operatives always involves a diminution of culpability: at [22], [47]. There may be cases assessed within the mid-range of objective seriousness despite a guilty plea and supply to undercover operatives: at [22].

Considerable caution is required in attempting to apply the mitigating factor in s 21A(3)(a) Crimes (Sentencing Procedure) Act 1999 (the injury, emotional harm, loss or damage caused by the offence was not substantial) to drug supply offences: Taysavang v R at [50]; Truong v R at [26]. In Taysavang v R, the court said at [49]:

If significant weight should be given to the mitigating circumstance prescribed by s 21A(3)(a) in a case where the supplied drugs fall into the hands of a police officer who poses as a purchaser, it is difficult to see why that statutory consideration should have any less weight where the supplied drugs are kept from dissemination because they are seized at the point of arrest in cases not involving police participation in the transaction. To mitigate penalty on that basis would be absurd.

In AB v R [2013] NSWCCA 273, the court held that the sentencing judge was very generous to find, as a mitigating factor under s 21A(3)(a), no substantial harm was caused. If the drugs had been disseminated into the community, it would have constituted a significant aggravating factor on sentence, however, the absence of an aggravating factor does not translate into a mitigating factor. Where, because of a police operation, drugs are not actually disseminated into the community, the moral culpability of an offender is not thereby reduced: AB v R at [92]; Giang v R [2017] NSWCCA 25 at [24].

An offence may still be regarded as one committed without regard for public safety under s 21A(2)(i) Crimes (Sentencing Procedure) Act 1999 where the drugs have been supplied to an undercover operative: R v Way (2004) 60 NSWLR 168 at [172]. In R v Way, the offender:

undertook the transaction expecting a considerable personal profit, and in the understanding that the drugs would be resold, heedless of the consequences to those who purchased and consumed them, or of the fact that users commonly resort to property offences to feed a habit, leaving other victims in their wake.

[19-870] Other factors relevant to objective seriousness

Quantity and purity of drug

Section 4 the Drug Misuse and Trafficking Act provides that:

In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug.

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]:

A serious fallacy in his Honour’s reasoning is that it assumes that any case involving more than 250 grams of heroin is likely to be a worse case than any case involving only 250 grams or less. That cannot be so in the virtually absolute terms in which his Honour puts it. Little imagination is required to envisage a case involving a relatively small quantity of heroin, as being of very great seriousness, for example, supply to create an addiction in an infant.

Type of drug

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:

no longer approaches the evaluation of the seriousness of a particular supply offence by distinguishing between different types of drugs according to the perceived dangerousness of the drug being supplied. Rather the Court has stressed that the appropriate consideration is the relevant statutory regime and the maximum penalty prescribed for the offence: cited with approval in R v Des Rosiers (2006) 159 A Crim R 549 at [23].

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

Role of offender and level of participation

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]:

the indicator of the role of an offender as “principal” involves at least some of the following characteristics:

  • contributing financially to the cost of setting up the operation;

  • standing to share in the profit (as distinct from receiving payment);

  • having some hand in the management of the operation (although it is well recognised that principals will, so far as possible, distance themselves from the day to day operation, they nevertheless maintain considerable control over the enterprise);

  • having some decision making role (which may not be different from the item above).

  • This does not purport to be anything like an exhaustive list. There may well be other features that indicate that an offender ought to be characterised as a principal.

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 well-recognised principle that the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v Laurentiu and Becheru (1992) 63 A Crim R 402.

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]:

[I]t needs to be remembered clearly, and to be given serious effect in the ultimate sentencing outcome, that while a non-principal will normally be dealt with as being less objectively culpable than a principal in a flagrant and systematic flouting of the anti-drug laws of this State, it does not at all follow that a non-principal will receive, more or less as of course, a dramatically more lenient sentence.

[19-880] Subjective factors

Good character

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:

Very frequently, those selected to play some part in the chain of drug trafficking, as the appellant plainly enough was, are selected because their records, their past and their lifestyles are not such as to attract suspicion. It is this, in particular, which has led the courts to take in the case of drug trafficking, a view which does not involve the same degree of leniency being extended to first offenders.

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].

The relevance of addiction

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:

(a)

the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;

(b)

however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:

(i) 

the impulsivity of the offence and the extent of any planning for it …;

(ii) 

the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;

(iii) 

the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act …

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:

Even though his judgment might have been clouded by his use of cocaine, that can have little mitigation of the objective seriousness of the offence because it was self-induced by his abuse of drugs.

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.

Vulnerability

While drug addiction per se is not a mitigating factor, a drug addict may demonstrate vulnerability, when addiction, coupled with other factors, is taken into account. In Postlewaight v R [2007] NSWCCA 230 at [16], the offender’s addiction made him particularly vulnerable to being utilised by his co-offender. The sentencing judge’s acceptance that the applicant’s addiction was directly related to his offending should have meant that she assessed the offence at the lower end of criminality. The vulnerability of the offender in R v Shi [2004] NSWCCA 135 due to his age, background and drug addiction was also taken into account.

Assistance to authorities

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:

It is in the community interest in sentencing couriers that the objective of securing their co-operation to implicate principals should substantially prevail when that objective runs counter to the objective of deterring people from acting as couriers by imposing heavy sentences. It should substantially prevail, because it is more likely in the long run to disrupt and break up drug trafficking.

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

[19-890] Drug offences and s 21A Crimes (Sentencing Procedure) Act 1999

See Double counting in Limitations on the use of s 21A(2) factors at [11-040], particularly Kassoua v R [2017] NSWCCA 307 at [14].

Section 21A(2)(g) — Substantial injury, emotional harm, loss or damage caused by offence

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.

Section 21A(2)(i) — Offence committed without regard for public safety

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

failure to have regard for public safety is an inherent characteristic of the offence of ongoing supply of cocaine. I also think that it is an inherent characteristic of the offence of actual supply and deemed supply of that prohibited drug.

… the sentencing judge could not take into account this inherent characteristic as an aggravating factor unless its nature or extent went beyond what ordinarily might be expected.

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.

Section 21A(2)(l) — Vulnerability of victim

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]:

it is possible to think of potential heroin users as being victims, and as being vulnerable … but, once again, a conviction for an offence for supplying heroin, or of being deemed to have supplied heroin, carries this concept with it, so that it is not correct to hypothesise about potential victims, and of their being vulnerable, and then to treat this hypothesis as constituting an aggravating factor, so far as concerns the particular sentence to be imposed for a particular offence.

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.

Section 21A(2)(m) — Multiple victims or series of criminal acts

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].

Section 21A(2)(n) — Planned or organised criminal activity

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].

Section 21A(2)(o) — Offence committed for financial gain

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]:

it would be wrong to rewrite s 21A(2)(o) so that the phrase “for financial gain” was read as if it said “for a financial gain which exceeded that which might be expected in the lowest level of offending for this type of offence”. To impose such a constraint would be wrong and would tend to overcomplicate the sentencing process.

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].

Section 21A(3)(d) — Offender acting under duress

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