Citation: R v Matthew John Smith [2007] NSWDC 391
Court: District Court of New South Wales
Date: 4 October 2007
Judge(s): Cogswell SC DCJ
Background
Police investigating suspected drug supply in Armidale executed a search of the offender's home in September 2006. They discovered almost 277 grams of cannabis, approximately 7 grams of MDMA (26 pills), approximately 3 grams of LSD (46 tablets), and around 3.5 grams of methylamphetamine. Electronic scales and more than $66,000 in cash were also found.
The offender was charged with four counts of supplying a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act 1985, one count per drug type. Critically, none of the charges represented an actual observed supply. Each charge was a "deemed supply," meaning the prosecution relied on the quantity of drugs found as sufficient to raise a statutory inference that possession was for the purpose of supply.
The offender had been in custody since his arrest. He pleaded guilty to all four counts and appeared before the District Court for sentencing. His counsel acknowledged that the offender had plainly been engaged in drug trafficking to a substantial degree.
Legal Issues
- What was the appropriate overall head sentence and non-parole period for four concurrent deemed supply offences involving different prohibited drugs?
- To what extent did aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 apply, particularly where the charges were deemed rather than actual supplies?
- What weight should be given to the offender's subjective circumstances, including his plea of guilty, prospects of rehabilitation, and role as a primary carer?
- Did special circumstances exist to justify a parole period longer than the statutory minimum?
Decision
The court found the offences were objectively serious. They were not isolated incidents: the range of drugs, the quantity of cash, and the presence of a floor safe all pointed to planned and organised dealing motivated by financial gain rather than necessity. The court drew inferences about the extent of the offender's dealing activity as context for assessing the features of planning and repetition, while being careful to limit those inferences to those purposes.
However, because the charges were deemed supplies rather than actual supplies, the court declined to apply the aggravating factor under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999, which relates to offences committed without regard for public safety. The deemed nature of the charges constrained the aggravating circumstances that could properly be taken into account.
On subjective factors, the court accepted that the offender had good prospects of rehabilitation. He had remained drug-free in custody, declined offers of drugs, avoided associations that might have encouraged drug use, and had maintained a TAFE enrolment. His partner gave evidence supporting his character as a father, and a prospective employer was identified. His prior criminal history was minimal, with only one earlier drug possession matter of note.
The court assessed an appropriate head sentence at three and a half to four years before the guilty plea discount, then reduced this to two and a half years to reflect the plea and genuine remorse. A non-parole period of 18 months was set, backdated to the date of arrest. The parole period of 12 months exceeded the statutory minimum, with the court finding special circumstances based on the offender's rehabilitation needs and his status as a first-time prisoner. All four sentences were ordered to run concurrently, as the offending was discovered simultaneously and formed part of the same criminal activity.
Orders Made
- Four concurrent sentences imposed, each comprising a non-parole period of 18 months and a balance of term of 12 months, backdated to 26 September 2006 and expiring on 25 March 2009.
- Direction made under s 50 of the Crimes (Sentencing Procedure) Act 1999 for the offender's release at the end of the non-parole period (25 March 2008).
- Parole conditions imposed requiring the offender to submit to supervision by the Probation and Parole Service and to accept reasonable directions concerning alcohol and drug rehabilitation.
- Backup offences (possession of amphetamine, MDMA, LSD, cannabis resin, and dealing with suspected proceeds of crime) dismissed under s 167(1A) of the Criminal Procedure Act 1986.
- Drugs ordered to be destroyed under s 39P of the Drug Misuse and Trafficking Act 1985.
Key Takeaways
- Where charges are framed as deemed supply rather than actual supply, the sentencing court held that the aggravating factor of committing an offence without regard for public safety under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 did not apply.
- Inferences about the broader scope of a drug dealer's activities can still be drawn from surrounding circumstances (cash, scales, a floor safe) but are properly limited to informing findings about planning and whether the offending was isolated, rather than as free-standing aggravating factors.
- A guilty plea, combined with genuine remorse and strong subjective factors, supported a meaningful discount from what would otherwise have been a head sentence in the range of three and a half to four years.
- Special circumstances justifying a longer-than-statutory parole period were established by the combination of first-time imprisonment and identified rehabilitation needs, particularly around drug dependency.
- Concurrent sentences were appropriate where multiple deemed supply charges arose from drugs found at the same time and location as part of a single course of criminal conduct.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 19, 25(1), 39P
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 50
- Criminal Procedure Act 1986 (NSW), ss 166, 167(1A)
Cases cited: None cited in the judgment.