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District Court 31 July 2008

R v Grant DURRINGTON; R v Matthew John CORBY

[2008] NSWDC 362

Drugs
CRIMINAL LAW SENTENCE PLEA OF GUILTY NO PRIOR CONVICTIONS APPLICABILITY OF CLARK PRINCIPLES

Citation: R v Grant Durrington; R v Matthew John Corby [2008] NSWDC 362
Court: District Court of New South Wales
Date: 31 July 2008
Judge(s): Cogswell SC DCJ

Background

Two young men, both aged twenty at sentencing, each pleaded guilty to knowingly taking part in the supply of MDMA (Ecstasy) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of fifteen years imprisonment. Neither had any prior criminal convictions.

The offences occurred in January and February 2007 respectively and involved the same primary offender, a man named Chippendore. Each of the defendants drove Chippendore to a car park where the actual supply of approximately fifty Ecstasy tablets took place. Neither defendant had physical possession of the drugs, and each was aware before arriving that a drug supply was to occur.

Both defendants were arrested on 15 February 2007. Pre-sentence reports were obtained from the Probation and Parole Service, and a psychological report was tendered for one of the defendants. Both had demonstrated remorse and rehabilitation since the offending.

  • Whether the objective seriousness of the offences and the personal circumstances of the defendants warranted a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999, rather than a more serious sentencing disposition
  • Whether the principles from R v Clark (relating to substantial drug trafficking) had any application on these facts
  • What weight to give to mitigating factors including youth, absence of prior convictions, early guilty pleas, peripheral roles, no financial gain, and post-offence rehabilitation

Decision

The court accepted the submissions of both defence representatives and imposed three-year good behaviour bonds under s 9 of the Crimes (Sentencing Procedure) Act 1999. The court did so with expressed hesitation, noting that the offences were genuinely serious, carrying a maximum of fifteen years, and that the drug involved could be dangerous in inexperienced hands.

The prosecution acknowledged that the objective seriousness of each offence was very low, that neither defendant had actual possession of the drugs, that their role was assistive rather than central, and that there was no evidence of involvement in substantial trafficking. The prosecution also conceded that the Clark principles, which apply in more serious trafficking contexts, had no application here. The prosecution's own position was that the appropriate outcome lay somewhere between a s 9 and s 12 bond.

The court weighed a range of mitigating factors: the defendants' youth, absence of criminal history, early guilty pleas, peripheral roles, lack of financial gain, remorse, good character references, and the positive changes each had made since the offending. These factors, taken together, supported the conclusion that full-time or part-time custody was not warranted.

The two defendants received bonds on slightly different terms. One defendant's bond included a supervision condition requiring engagement with the Probation and Parole Service on alcohol use and peer associations, reflecting the recommendation in his pre-sentence report. No such condition was imposed on the other defendant, as supervision had not been recommended for him.

Orders Made

  • Corby: three-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999, with conditions requiring good behaviour, attendance before the court if called upon, and notification of any change of residential address
  • Durrington: three-year good behaviour bond under s 9, with the same standard conditions plus a supervision condition requiring compliance with the Probation and Parole Service's reasonable directions regarding alcohol use and peer associations

Key Takeaways

  • A peripheral, non-possessory role in a single supply transaction involving approximately fifty Ecstasy tablets was treated as sitting at the low end of seriousness for an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985.
  • Where defendants have no prior convictions, demonstrated remorse, made positive lifestyle changes, and entered early guilty pleas, a s 9 good behaviour bond may represent the appropriate sentencing outcome even for offences carrying a maximum of fifteen years imprisonment.
  • The District Court confirmed that the R v Clark principles, applicable to more substantial trafficking conduct, had no application to these facts given the absence of evidence of ongoing or significant drug dealing.
  • Supervision conditions within a s 9 bond can be tailored to individual defendants: the court imposed a Probation and Parole supervision condition on one defendant but not the other, following the respective recommendations in the pre-sentence reports.
  • Prosecution concessions on objective seriousness and the applicability of relevant sentencing principles played a material role in the court's reasoning, illustrating that prosecutorial fairness and candour can be directly reflected in the sentencing outcome.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9

Cases:
- R v Clark (Court of Criminal Appeal, NSW)