R v Berry [2019] NSWDC 522

District Court New South Wales

Medium Neutral Citation: R v Berry [2019] NSWDC 522 Hearing dates: 18 April 2019 Date of orders: 18 April 2019 Decision date: 18 April 2019 Jurisdiction: Criminal Before: Buscombe DCJ Decision: See paragraphs [51] to [54] Catchwords: CRIME — Drug offences — Supply prohibited drug — heroin CRIME — possess prohibited weapon — slingshot SENTENCING — Aggravating features — offence committed whilst on bail Legislation Cited: Crimes (Sentencing Procedure) Act Drug Misuse and Trafficking Act Weapons Prohibition Act Cases Cited: Hayek v The Queen [2016] NSWCCA 126 Category: Sentence Parties: Director of Public Prosecutions (Crown) Adrian Arthur Berry (Offender) Representation: Counsel: R Jankowski (Offender)

Solicitors: R Trinnie (Crown) File Number(s): 2017/003785422018/00093551

SENTENCE 1. HIS HONOUR: The offender pleaded guilty in the Local Court and adheres to his pleas of guilty before me to three offences. 2. The first is an offence that between 23 November 2017 and 14 December 2017 at Katoomba he did on three or more separate occasions during a period of 30 consecutive days supply a prohibited drug other than cannabis, being heroin, for financial or material reward. 3. There is a second or similar offence which is that between 15 December 2017 and 14 January 2018 at Katoomba the offender did on three or more separate occasions during a period of 30 consecutive days supply a prohibited drug other than cannabis, being heroin, for financial or material reward. 4. Those two offences are under s 25A(1) of the Drug Misuse and Trafficking Act. They have a maximum penalty of 20 years imprisonment and/or a fine of 3,500 penalty units. 5. There is a third offence, that on 14 December 2017 at Leura the offender possessed a prohibited weapon without being authorised to do so by a permit. That is an offence under s 7(1) of the Weapons Prohibition Act. It has a maximum penalty of 14 years imprisonment and there is a standard non-parole period applicable to that offence of five years imprisonment. 6. There is also a Form 1, and the offender has acknowledged his guilt in relation to the three offences on the Form 1. 7. The first is a supply prohibited drug offence involving 0.73 grams of heroin. There is a possess prohibited drug offence which involves the possession of 3.68 grams of heroin and there is another ongoing supply offence concerning arranging by telephone to supply heroin for payment on nine occasions where the total was 0.8 grams of heroin. 8. I will take those matters into account when sentencing the offender. I will take them into account in indicating the indicative sentence on the first supply prohibited drug on the ongoing basis charge. I will have regard to those offences in accordance with the guideline judgment concerning taking matters on a Form 1 into account. It is clear given the presence of the supply drug on an ongoing basis charge on the Form 1 that they must have some impact on the sentence to be imposed on the first supply prohibited drug on an ongoing basis.