DPP Appeals ‘Inadequate’ Sentence for Large Commercial Drug Supply

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By Paul Gregoire and Ugur Nedim

Damon Ehrlich was arrested on 15 November 2009, in relation to 261.6 grams of methamphetamine that NSW police found in the possession of Lasalo Paeu at Sydney airport. Mr Paeu and Brent Taylor were about to board a plane to Perth, in order to supply the drugs for on sale.

Mr Ehrlich had obtained the methamphetamine from Thi Pham to supply to Mr Taylor.

After being released on bail, police became aware that Ehrlich was involved in a large-scale drug syndicate. On 2 May 2010, the 35-year-old Sydney man was arrested in Brisbane on an unrelated matter and charged with the offence he was ultimately put away for.

Between 4 September and 11 November 2009, Mr Ehrlich had been involved in a drug syndicate operating between Sydney, Perth and Kalgoorlie. The operation involved six other members.

It was alleged that Ehrlich supplied methamphetamine on nine occasions during the three month period. The total supplied was 1.615 kilograms.

Besides the methamphetamine found on Mr Paeu at Sydney airport, no other drugs were seized. However, NSW police were able to infer the nature and quantity of the supply of the other occasions via the content of intercepted telephone conversations, as well as banking transactions.

An unsophisticated operation

Mr Ehrlich was charged with supplying a large commercial quantity of methamphetamine, under section 25(2) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of life imprisonment and/or a fine of $550,000.

The standard non-parole period (SNPP) for a large commercial drug supply is 15 years in prison. An SNPP is a reference point for the sentencing judge to consider when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.

Mr Ehrlich pleaded guilty to the offence, and NSW District Court Judge Robyn Tupman found that he was “at least a principal in the drug supply syndicate.” And even though he could not be called the head of the racket, he was the “common thread.”

Her Honour determined that the offence lay in “the middle of the range in terms of objective seriousness, but very much towards the bottom of the middle of that range.” She noted that Ehrlich was involved in organised criminal activity for a lengthy time, although it wasn’t very sophisticated.

The court heard that Ehrlich had some prior criminal convictions, including one for drug supply. However, there was a very significant gap between his earlier offending and the present case. It was also heard that the offender had problematic drug use issues and a gambling addiction.

The sentence in question

On 16 June 2011, Judge Tupman sentenced Mr Ehrlich to 6 years and 4 months imprisonment, with a non-parole period of 4 years and 10 months.

The sentence was discounted by 25 percent due to the offender’s guilty plea. And although her Honour found the assistance Ehrlich had provided to authorities of only “some value,” she factored in a further 10 percent discount for that assistance, under the provisions of section 23 of the Crimes (Sentencing Procedure) Act 1999.

The initial sentence Judge Tupman handed down prior to the 35 percent discount being applied was 10 years imprisonment, with a non-parole period of 7 years and 6 months.

The grounds of appeal

On the 11 November 2011, the Director of Public Prosecutions appealed to the NSW Court of Criminal Appeal against the sentence on two grounds. The first ground was that the sentence was manifestly inadequate.

The second ground of appeal was that the sentencing judge had made an error when awarding the 10 percent discount for assistance provided to authorities. The Crown argued that the discount was excessive because the assistance was of little value.

The DPP submitted that in cases where a 25 percent guilty plea discount is already being applied to a sentence, 15 percent is the total discount available for providing assistance. This was based on the reasoning of NSWCCA Justice Robert Hulme in the 2008 case R v Kumar and Feagaiga.

The DPP pointed out that 10 percent is a high proportion of the maximum 15 percent discount available, and could not be justified when considering the circumstances of Ehrlich’s case.

The value of assistance

NSWCCA Justice Michael Adams explained that the DPP’s approach to discounting for assistance was wrong, as it gave “mere arithmetic an inappropriately decisive role capable of undermining the fundamental public interest for which a discount given for assistance to the authorities is allowed.”

According to his Honour, assistance discounts have public value as they incentivise offenders to assist authorities in the investigation of crimes by providing them with a definable award if they do so.

Justice Adams outlined that in Ehrlich’s case, the 10 percent discount shouldn’t be contrasted with the 15 percent maximum said to bear when there is a 25 percent discount for a guilty plea.

Rather, the appropriateness of the assistance discount should be considered absent of any other discounting.

“In my respectful view, the sentencing judge’s figure is appropriate, and I would reject the Crown appeal to the extent that it depends upon the contention that it was too generous,” Justice Adams outlined.

Manifestly inadequate

In relation to the adequacy of the length of the sentence, Justice Adams took into account that the offender was “the principle” in a large-scale methamphetamine supply syndicate. And he also said that Ehrlich’s gambling and drug taking practices were not to be considered as mitigating factors.

When considering the maximum penalty and SNPP relating to the offence, the sentence handed down by Judge Tupman prior to the discounts being applied could “justify a starting point significantly higher than that selected,” his Honour said.

However, the justice was “unpersuaded that the sentence was manifestly inadequate and reflective of latent error.” And in concluding his full findings, Justice Adams suggested that the Crown appeal be dismissed.

A majority dismissal

While fellow NSWCCA Justice Peter Johnson agreed the sentencing judge had been correct in applying the 10 percent assistance discount, he found that the sentence was manifestly inadequate considering the gravity of the offence and Ehrlich’s prior convictions.

Justice Johnson ordered that the original sentence imposed be quashed and that Ehrlich be re-sentenced. However, Justice John Basten agreed with Justice Adams, and comprising the majority of the three justice panel, the Crown appeal was dismissed on 28 March 2012.

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