AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 23 January 2009

R v Whitmore, Mattew

[2009] NSWDC 45

Drugs
CRIMINAL LAW SENTENCING SUPPLY PROHIBITED DRUGS ECSTACY 1.02GMS FORM 1 MATTERS

Citation: R v Whitmore, Mattew [2009] NSWDC 45
Court: District Court of New South Wales
Date: 23 January 2009
Judge(s): Nicholson SC DCJ

Background

The offender, a young man with a background of high achievement in swimming, music, and tennis, was found by police at his Surry Hills flat in the early hours of 27 September 2007. Police entered out of welfare concerns after observing erratic behaviour consistent with a drug-induced psychotic state. A subsequent search warrant yielded ecstasy tablets, methamphetamine (ice), and LSD.

The offender pleaded guilty on arraignment to one charge of supplying a prohibited drug, specifically ecstasy. The supply consisted of four ecstasy tablets found in a bag labelled with the name "Wade," a friend. Three further matters, including possession of additional ecstasy, methamphetamine, and LSD, were placed on a Form 1 to be taken into account on sentence. (A Form 1 is a procedural mechanism allowing other offences to be considered by the sentencing court without separate convictions being recorded for each.)

The Crown conceded that the remaining drugs, beyond the four tablets intended for Wade, were likely held for the offender's personal use rather than for supply, given the offender's documented drug consumption, the presence of personal drug-use paraphernalia, and the bag labelled with the offender's own name.

  • What was the objective criminality of the supply offence, given the small quantity involved (1.02 grams, a trafficable but sub-indictable amount) and the Crown's concession about the remaining drugs?
  • What weight should be given to the offender's subjective circumstances, including a history of drug-induced psychosis, prior good character, and demonstrated rehabilitation?
  • Whether a non-custodial sentence, specifically a good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act, was appropriate in the circumstances.
  • What conditions should attach to any bond to support ongoing rehabilitation and community protection?

Decision

Nicholson SC DCJ assessed the objective criminality as relatively low. The supply was a one-off event to an end user (a friend named Wade), involving only 1.02 grams of ecstasy. The court accepted the Crown's concession that the remaining drugs, though present in quantities that the law would ordinarily deem to be held for supply, were for personal use, given the totality of the evidence.

On subjective features, the court found the offender's circumstances to be compelling. He had no prior criminal history of significance, had demonstrated genuine insight into his drug problem, and had engaged seriously with psychiatric treatment. The court was satisfied that the drug-induced psychotic episodes, which were stark and well-documented, illustrated both the harm drugs had caused the offender and the importance of continued treatment.

The court concluded that, while general deterrence remained relevant, the offender's strong rehabilitation prospects and the low objective criminality of the offence together supported a non-custodial outcome. A two-year good behaviour bond was imposed under section 9 of the Crimes (Sentencing Procedure) Act, with the court noting that the bond itself carried a deterrent dimension: any re-offending during the bond period would place the offender's liberty at risk.

Orders Made

  • Convicted of supplying a prohibited drug (ecstasy, 3-4 methylenedioxymethylamphetamine) at Surry Hills on 27 September 2007.
  • Three Form 1 matters taken into account on sentence.
  • Section 9 good behaviour bond imposed for two years, with the following conditions:
  • The offender must be of good behaviour.
  • The offender must continue treatment with Dr Roberts until Dr Roberts determines treatment is no longer required; if that treating relationship ends, a psychiatrist of equivalent qualification must be engaged.
  • The offender must accept supervision by Probation and Parole for a minimum of six months (and thereafter at Probation and Parole's discretion), solely for the purpose of verifying ongoing attendance at treatment.
  • The offender must remain alcohol-free for six months from the date of sentence.

Key Takeaways

  • A sentence of imprisonment is not inevitable for a supply offence involving a small, trafficable quantity of ecstasy where the supply is a one-off transaction to an end user and the offender's subjective circumstances are compelling.
  • Where the Crown concedes that drugs beyond those charged were held for personal use rather than supply, the sentencing court is confined, on the facts before it, to the quantity actually established as intended for supply when assessing objective criminality on the principal charge.
  • Under section 9 of the Crimes (Sentencing Procedure) Act, a good behaviour bond remains available as a sentencing option in drug supply matters, even where Form 1 offences are also taken into account, provided the overall criminality and personal circumstances warrant it.
  • Demonstrated psychiatric engagement and genuine rehabilitation can carry significant weight in sentencing, particularly where the offending is directly connected to a documented and serious drug-induced mental health condition.
  • The District Court treated the two-year duration of the bond as itself carrying deterrent value, on the basis that any re-offending during that period would expose the offender to a more severe penalty.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), particularly section 9 (good behaviour bonds)

Cases cited: None identified in the provided text.