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District Court 28 July 2008

R v David GRAZIANO

[2008] NSWDC 384

Drugs
CRIMINAL LAW SENTENCE SUPPLY ECSTASY AND COCAINE FORM 1 OFFENCES PLEA OF GUILTY AT EARLIEST OPPORTUNITY DEALER OR COURIER?

Citation: R v David Graziano [2008] NSWDC 384
Court: District Court of New South Wales
Date: 28 July 2008
Judge(s): Cogswell SC DCJ

Background

During a random breath test stop on 16 February 2008, police searched the offender's car and discovered 5.5 grams of ecstasy (19 pink tablets) and 6.8 grams of cocaine (distributed across approximately ten small bags), along with cash, scales, scissors, a knife, unused plastic bags, and two mobile phones. The offender pleaded guilty at the earliest opportunity to two counts of supply of a prohibited drug under the Drug Misuse and Trafficking Act 1985, each carrying a maximum penalty of 15 years imprisonment.

The offender had suffered serious injuries in a motor vehicle accident some years earlier, leaving him in significant and ongoing pain. He gave evidence that he began using cocaine to manage that pain after other methods provided limited relief, and that he was acting as a delivery person for a friend rather than as an independent dealer.

Notably, the offender had been charged with possession of cocaine in 2007 and received a conditional release bond on 28 November 2007 under section 10 of the Crimes (Sentencing Procedure) Act 1999. The present offences were committed approximately three months later, while that bond was still in force.

  • Whether the offender was a drug dealer or merely a courier, and what role the court could be satisfied of beyond reasonable doubt
  • The weight to be given to the offender's medical condition and cocaine use as a form of pain relief
  • The significance of committing offences while on conditional liberty
  • Whether the sentences for the two supply offences should be served concurrently or cumulatively
  • The appropriate discount for an early guilty plea
  • Forfeiture of property under the Confiscation of Proceeds of Crime Act 1989

Decision

The central factual question was whether the offender was the dealer or merely a courier. The court acknowledged a strong suspicion that he was the supplier himself, pointing to the scales, multiple bags, two mobile phones, and cash. However, applying the criminal standard of proof, the court was not satisfied beyond reasonable doubt that he was the dealer. Medical evidence supporting his need for pain relief lent credibility to his account of personal drug use, and the court observed a degree of candour in his evidence, including admissions against his own interests.

The court accepted that the offender was delivering drugs on behalf of a friend within a social circle, receiving cocaine in return as payment in kind. The $775 in cash was accepted as legitimate plumbing income. The $290 was found to be drug proceeds collected on behalf of the supplier. Two form 1 matters (goods in custody and possession of 0.3 grams of cocaine found in his wallet) were taken into account when sentencing for the cocaine offence, but did not increase the sentence because they arose from the same transaction.

Two aggravating factors weighed against the offender. First, the offences were committed while he was on a good behaviour bond granted by a court only three months earlier, representing a significant breach of the conditional liberty extended to him. Second, the court made a general observation about the serious public harm caused by drug distribution, even within social circles, emphasising the dangerous and addictive nature of the substances involved. The court nonetheless accepted the transactions sat towards the lower end of the seriousness scale.

The court imposed concurrent sentences because both drug deliveries formed part of a single overall transaction destined for the same recipient. A discount was applied for the early guilty plea. The court also noted that the offender's capacity for rational decision-making had been genuinely affected by the consequences of his accident, a factor advanced in mitigation.

Orders Made

  • Cocaine supply offence: non-parole period of 18 months, balance of term 12 months (total 2.5 years), backdated to 16 February 2008
  • Ecstasy supply offence: non-parole period of 12 months, balance of term 6 months (total 18 months), to run concurrently with the cocaine sentence
  • Projected release date: 15 August 2009, subject to Probation and Parole Service supervision, with a condition to follow reasonable directions particularly relating to drug use
  • Forfeiture to the State of cash of $290 found on 16 February 2008
  • Forfeiture to the State of one black Vodafone mobile phone
  • Forfeiture to the State of a Daihatsu sedan (registration ZEV 143), with the total forfeited property valued at approximately $2,000
  • Leave granted under section 19 of the Confiscation of Proceeds of Crime Act 1989 for immediate disposal of the forfeited property

Key Takeaways

  • The District Court applied the criminal standard of proof (beyond reasonable doubt) to the factual question of whether the offender was a dealer or courier, and declined to sentence on the more serious dealer basis where that finding could not be made to the requisite standard.
  • Where credible medical evidence supports an offender's account of drug use for pain management, that evidence can lend coherence and weight to mitigation, even in supply offences.
  • Committing drug supply offences while subject to a court-imposed good behaviour bond was treated as a significant aggravating factor, reflecting a misuse of the conditional liberty granted by the court.
  • Concurrent sentences are appropriate where multiple drug supply counts arise from a single transaction involving the same recipient, rather than representing separate or independent criminal episodes.
  • Under the Confiscation of Proceeds of Crime Act 1989, property connected to drug supply, including cash, a mobile phone, and a motor vehicle, was ordered forfeited to the State, with leave granted for immediate disposal.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 32
- Crimes Act 1900 (NSW), s 25 (noted in metadata)
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 18(1), 19

Cases cited: No cases were cited in the judgment.