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District Court 27 August 2009

R v Scott James McCULLOCH

[2009] NSWDC 371

Drugs
CRIMINAL LAW SENTENCE DRUG SUPPLY 1,4 BUTANEDIOL GHB

Citation: R v Scott James McCulloch [2009] NSWDC 371
Court: District Court of New South Wales
Date: 27 August 2009
Judge(s): Berman SC DCJ

Background

The offender, a young Scottish man who had arrived in Australia in late 2008, was arrested in March 2009 after police observed him handing over a plastic bag to two men in a car near Town Hall in Sydney and receiving what appeared to be money in return. A search found $1,200 in cash on him and, on the other two men, 296 grams of 1,4-butanediol in liquid form along with small plastic fish containers commonly used to distribute liquid drugs at nightclubs.

1,4-butanediol is a chemical that metabolises in the body into GHB (gamma-hydroxybutyrate), the drug more commonly known to the courts. The offender had obtained the substance, diluted it with turpentine and coloured it, and was supplying it to the two men who planned to package and sell it at nightclub venues. Upon arrest, he immediately admitted the conduct and cooperated with police, providing information about others involved in drug supply.

The offender pleaded guilty at the Local Court and came before the District Court for sentencing. He had no prior criminal history, suffered from depression, and had spent seven days in custody on remand during which his mental state was assessed as fragile and he was placed on suicide watch.

  • Whether the offending constituted drug trafficking "to a substantial degree" such that a full-time custodial sentence was ordinarily required
  • Whether exceptional circumstances existed to displace that general sentencing principle
  • Whether a suspended sentence was appropriate given the offender's imminent return to Scotland
  • What form of custodial sentence, if any, was proportionate given the objective seriousness of the offence and the offender's favourable subjective circumstances

Decision

Berman SC DCJ found that the offending was serious and was not an isolated incident, despite the quantity supplied being below the commercial threshold of one kilogram. The court noted that the offender was a non-user dealer motivated purely by financial gain, a category traditionally regarded by courts as among the most culpable in drug supply matters.

The sentencing judge accepted that a full-time custodial sentence was not required, either because the trafficking did not reach the threshold of "substantial degree" or because, if it did, exceptional circumstances existed. Those circumstances included the offender's youth, his depression, his distance from family support, his immediate and genuine remorse, his cooperation with police, and his strong prospects of rehabilitation.

A suspended sentence was rejected. The offender's bridging visa was about to expire and he intended to return to Scotland. The court reasoned that the deterrent effect of a suspended sentence, which depends on the ongoing threat of activation, would be illusory for a person living overseas and outside practical reach of the New South Wales courts. A suspended sentence would therefore render the punishment inadequate given the objective seriousness of the conduct.

The court settled on periodic detention as the least unsatisfactory option. It imposed a short fixed term, acknowledging that keeping the offender from his family support in Scotland for longer than necessary would be counterproductive, particularly given that his bridging visa prevented him from working and he would otherwise have little structure during the sentence period.

Orders Made

  • The offender was sentenced to a fixed term of imprisonment of three months, to be served by way of periodic detention.
  • The offender was directed to attend the Parramatta or Silverwater Detention Centre at 8:30am on 12 September 2009 to commence the sentence.

Key Takeaways

  • The District Court confirmed that trafficking to a substantial degree ordinarily requires a full-time custodial sentence, but that no bright line separates substantial from non-substantial trafficking, nor does one define what constitutes exceptional circumstances.
  • A suspended sentence was found to lack genuine punitive effect where an offender was imminently departing Australia, because the central deterrent mechanism of a suspended sentence (the ongoing threat of imprisonment if breached) would have no practical force against a person living overseas.
  • Non-user dealers motivated by profit are treated by courts as among the most culpable categories of drug supplier, even where favourable subjective factors are present.
  • Exceptional circumstances capable of displacing a full-time custodial sentence can include a combination of factors: youth, mental health vulnerability, geographical isolation from family, immediate remorse, cooperation with police, and strong rehabilitation prospects.
  • A 25 per cent discount on sentence applied to reflect the utilitarian value of an early guilty plea entered at the Local Court.

Legislation and Cases Referenced

Legislation: Not specified in the judgment text.

Cases: Not specified in the judgment text. The court referred generally to authorities on suspended sentences and trafficking to a substantial degree without citing specific cases by name.