Judge Gets Maximum Penalty Wrong

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By Paul Gregoire and Ugur Nedim

Between March and June 2014, Matthew “Fatty” Stapleton was under investigation by the NSW police for mid-level supply of methamphetamine.

Officers were granted the power to conduct a controlled operation, and recordings suggested that Mr Stapleton and Shane Mooney were associates.

On 16 May 2014, Stapleton contacted an undercover officer and arranged to sell him “two beers,” codename for two ounces of methamphetamine. Mr Stapleton then called Mooney and asked him to “drop that thing” around at his house before 2 pm.

Mooney was out having lunch, but he said he could go back to his workplace and “grab” the goods. Stapleton said if he wasn’t at home, Mooney could “put them” in his barbecue, or leave them in his backyard somewhere.

At 1.46 pm, police observed Mooney arrive at Stapleton’s house, and leave eight minutes later. At 2.22 pm, an undercover police officer visited Stapleton and negotiated the price for two ounces of “gas.” The officer paid $3,000 for a plastic container of a “wet yellow substance,” which turned out to be 55.3 grams of ice.

At 12.23 pm on 1 June 2014, Stapleton’s younger brother Andrew ordered two ounces – or 56 grams – of “ice” that he wanted to on-sell to a friend. Mr Stapleton then phoned Mooney and asked him to drop off “two bourbons” to his brother, who was living at his mother’s house.

The raid

On 19 June 2014, NSW police executed a search warrant at Mr Mooney’s house. While Mooney was outside securing his dog, the officers found 21 cannabis plants in a backroom, as well as 77.3 grams of methamphetamine.

According to Mooney, the plants were for personal use, and he was holding the “speed” for Stapleton. He said he didn’t take any payment for holding or dropping off the drugs, that he knew what he was doing was wrong, and that he felt “used” by Stapleton.

An easy target

In Campbelltown Local Court on 22 April 2015, Mr Mooney pleaded guilty to two counts of supplying a prohibited drug, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (DMTA).

Considering the type and quantity of the drug concerned, the offence carries a maximum penalty of 15 years imprisonment and/or a fine of up to $22,000.

He also pleaded guilty to one count of cultivating a prohibited plant, under section 23(1)(a) of the Act. That offence carries a maximum penalty of 10 years imprisonment and/or a fine of up to $22,000.

Judge Jennifer English sentenced Mr Mooney in Campbelltown District Court on 14 August 2015.

Her Honour noted that Mr Mooney was “basically a very kind and helpful person”, but suffered from low self-esteem. This, according to Her Honour, made him the sort of “naïve” person who was susceptible to being used by drug dealers as a courier or warehouse person.

The sentences

Although Mooney had “absolutely no idea of the extent of the criminal activity” he was engaging in, Judge English noted that he had been found with a considerable quantity of drugs, and the fact he wasn’t being paid didn’t “lessen his moral culpability greatly.”

The judge acknowledged that the defendant entered early guilty pleas, and therefore gave him a 25 percent discount on his sentence. Her Honour also allowed for a further 15 percent discount due to the assistance he had provided to police.

For the first supply offence, Mooney was sentenced to two years and six months imprisonment, with a non-parole period of twelve months. For the second supply offence, he received three years, with a non-parole period of twelve months.

For the offence of cultivation, he received a nine month fixed term. The sentences were to be served with partial concurrence, resulting in a total non-parole period of one year and six months, and a balance of one year and nine months.

A significant yardstick

Mr Mooney appealed his sentencing to the NSW Criminal Court of Appeal (NSWCCA) in November last year.

He did so on the basis that Her Honour was under the misapprehension that the cultivation offence carried a maximum penalty of fifteen years, when it actually carries a maximum of ten.

Due to this error, Mr Mooney requested to be resentenced on all three charges.

NSWCCA Justice Natalie Adams remarked that such an error may “have infected the reasoning of the sentencing judge such that, absent error, some other and lesser sentence may have been imposed.”

And as there is no standard non-parole period (SNPP) for the offence of cultivation, “the maximum penalty fixed by the legislature is a significant yardstick” when handing down a sentence.

An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.

According to Her Honour, because of the way the sentencing judge had structured the sentences, only the first three months of the time Mr Mooney was serving were solely referable to the cultivation charge, and he had already served that time.

Resentencing

Justice Adams ruled out the idea that Mooney might be eligible to receive a non-custodial sentence for the cultivation charge, even though it was alleged the plants were for his personal use. Her Honour explained this was for two reasons.

The first was that when Mooney was arrested for the cannabis plants, he was also charged with two serious supply offences, so this was not an “isolated instance of offending.”

And the second reason was that the plants were being grown hydroponically, and the law recognises that growing cannabis by enhanced means is a more serious offence than growing it by conventional methods.

“The DMTA prescribes that the commercial quantity of cannabis plants grown by enhanced indoor means is 50 plants, whereas the commercial quantity for other cannabis plants is 250 plants,” Her Honour explained. She added that Mooney had almost half the commercial quantity.

But as the wrong maximum penalty was cited during the original sentencing hearing, Justice Adams found that Mooney should indeed be resentenced.

On 14 December last year, the justice substituted the original nine month sentence with a fixed sentence of six months.

Her Honour also altered the commencement dates of Mr Mooney’s other two sentences, so that four months of the newly applied six month sentence would be served concurrently.

The new total non-parole period for Mooney stood at one year and five months.

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