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District Court 9 February 2007

R v Davies

[2007] NSWDC 97

Drugs
CRIMINAL LAW SENTENCE AFTER TRIAL CIRCUMSTANTIAL EVIDENCE

Citation: R v Davies [2007] NSWDC 97
Court: District Court of New South Wales
Date: 9 February 2007
Judge(s): Nield DCJ

Background

The offender was a woman in her mid-forties who, following a jury trial, was convicted of deemed supply of a prohibited drug (heroin) contrary to s 25(1) of the Drug Misuse and Trafficking Act. The conviction arose from circumstances in which police, executing a search warrant on a unit in North Gosford on 8 January 2005, found a cash tin containing 9.4 grams of heroin, approximately $9,870 in cash, and various documents linking the offender to the property and to recent financial transactions.

The offender was intercepted leaving the building that evening but was released without arrest. Further investigation revealed that a large sum of cash ($21,554.70) and the offender's clothing were subsequently found in a motel room rented by an associate. The offender was ultimately arrested in March 2005 and charged with deemed supply, as well as two related charges of possessing money reasonably suspected of being unlawfully obtained.

The offender contested the charge at trial. The jury returned a majority verdict of guilty after two days of deliberation. The sentencing proceedings followed in January 2007.

  • What was the objective seriousness of the deemed supply offence, given the relatively small quantity of heroin (9.4 grams) but the presence of significant accompanying cash?
  • Which factors under s 21A of the Crimes (Sentencing Procedure) Act were properly to be treated as aggravating or mitigating?
  • Whether the surrounding circumstances of the offence, including cash holdings, street value, and deal size, were relevant to sentencing beyond the raw quantity of the drug?
  • What weight, if any, should be given to personal deterrence given the offender's extensive criminal history but absence of prior supply convictions?

Decision

The court rejected the defence submission that only the quantity of heroin was relevant to sentencing. Nield DCJ agreed with the Crown that other indicia of supply activity, including the quantity of cash found alongside the drug, the street deal size of heroin (0.1 gram per deal), and the bulk and street value of the 9.4 grams seized, were all properly relevant to assessing the objective seriousness of the offence.

The court accepted that the offence fell towards the lower end of the District Court's range, given that the quantity was only marginally above the indictable threshold and approximately one twenty-fifth of the commercial quantity. However, the presence of nearly $10,000 in cash with the drug, along with the further large sum recovered from the associate's motel room, indicated the offence was not a simple one-off act of minimal commercial significance.

The court found no relevant mitigating factors under s 21A(3). The offender had provided no information about her personal background, education, health, or upbringing, meaning the court was substantially limited in its knowledge of her subjective circumstances. Despite having 153 prior offences, none involved supply, and the court gave some weight to general and specific deterrence in the sentencing calculus.

Nield DCJ fixed a non-parole period of three years and a parole period of one year, arriving at a total sentence of four years imprisonment. The sentence was backdated to account for 41 days already served in pre-trial custody.

Orders Made

  • The offender was convicted and sentenced to four years imprisonment, with a non-parole period of three years commencing 27 August 2006 and expiring 26 August 2009.
  • The parole period was fixed at one year, from 27 August 2009 to 26 August 2010, with supervision by the NSW Probation and Parole Service.
  • The backup charge of possessing a prohibited drug was dismissed.
  • The two related charges of possessing money suspected of being unlawfully obtained ($9,870.50 and $21,554.70) were each remitted to the Local Court at Gosford for mention on 23 February 2007 to fix a hearing date.
  • The seized heroin was ordered to be destroyed.

Key Takeaways

  • In sentencing for deemed supply of heroin, the District Court confirmed that the raw quantity of the drug is not the sole relevant factor; surrounding circumstances such as cash holdings, street deal sizes, and the drug's bulk value are properly considered in assessing objective seriousness.
  • A finding that no mitigating factors were present under s 21A(3) of the Crimes (Sentencing Procedure) Act was open where the offender provided no evidence of personal background, health, or other subjective circumstances.
  • Under s 25(1) of the Drug Misuse and Trafficking Act, the maximum penalty is 15 years imprisonment or a fine of $220,000, or both, and the offence does not carry a standard non-parole period.
  • Where an offender's prior record includes no supply-related convictions despite a lengthy criminal history, that history remains relevant to deterrence but does not transform a first supply offence into one carrying the full weight of recidivist sentencing.
  • The sentencing court backdated the sentence to account for pre-trial custody, reflecting the principle that time already served in relation to the relevant charge should be credited against the total term imposed.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act, s 25(1)
- Crimes (Sentencing Procedure) Act, s 3A (purposes of sentencing), s 21A (aggravating and mitigating factors)

Cases cited: No cases were cited in the text of the judgment.