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District Court 20 April 2010

R v O'Casy, Angus

[2010] NSWDC 110

Drugs
CRIMINAL LAW SENTENCING SUPPLY PROHIBITED DRUGS MDMA (ECSTACY) 700 TABLETS (175 GRAMS) PURCHASED 900 TABLETS FOR $12K

Citation: R v O'Casy [Sic], Angus [2010] NSWDC 110
Court: District Court of New South Wales
Date: 20 April 2010
Judge(s): Nicholson SC DCJ

Background

The offender, an 18-year-old male, used a victim's compensation payout of $37,000 to purchase 900 MDMA (ecstasy) tablets for approximately $12,000. He intended to transport and sell them in Alice Springs at $40 to $50 per tablet. He and associates consumed 200 tablets the weekend before his arrest, leaving 700 tablets in his possession at the time he was apprehended.

On 16 December 2008, police stopped the vehicle in which the offender was travelling as a passenger on the Stuart Highway, approximately 75 kilometres east of Balranald, as part of a random roadside breath test. A subsequent vehicle search uncovered the tablets, concealed across two backpacks and inside a hollowed-out torch in the boot of the car. The 700 tablets weighed 175 grams, constituting a commercial quantity of MDMA under New South Wales law. A small quantity of cannabis (approximately 22.8 grams) was also located.

The offender was charged with supplying a commercial quantity of a prohibited drug, an offence carrying a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years for cases falling in the middle range of objective seriousness. He pleaded guilty. The cannabis possession was dealt with on a Form 1 (a procedure by which a court takes additional, related offences into account when imposing sentence on the primary charge, without recording a separate conviction for them).

  • What was the appropriate objective seriousness of the commercial drug supply offence?
  • Whether the standard non-parole period of 10 years applied, and if so what weight it attracted in the circumstances?
  • What weight should be given to the offender's subjective circumstances, including his youth (18 years old at the time), prior injury, lack of actual supply occurring, and rehabilitation prospects?
  • What discount applied to reflect the guilty plea?
  • Whether special circumstances existed justifying a departure from the standard ratio of non-parole period to total sentence?
  • How the Form 1 cannabis possession matter should affect the overall sentence?

Decision

The court placed the offending in the lowest quadrant of objective seriousness for commercial drug supply. No actual supply had taken place at the time of arrest, so the potential for harm had not been realised. The quantity, however, was sufficient to have yielded between 28 and 140 individual deals. The court found the offending represented a deliberate step up from small-scale supply to known associates toward mid-level dealing to unknown persons, funded by a compensation payout intended to benefit the offender following a serious personal injury.

On the question of the standard non-parole period, the court acknowledged this was a possible standard non-parole period offence but found several factors reduced its impact: the offender's youth, the absence of actual supply, his minimal criminal history, and the guilty plea. The court distinguished an earlier authority (Clarke's case) on the facts.

The subjective case was assessed as strong. The offender had suffered significant head injuries in 2006 and experienced ongoing psychological difficulties. His rehabilitation prospects, while requiring careful assessment, were considered reasonable. The court accepted that community-based treatment for psychological issues and drug dependence represented genuine special circumstances warranting a longer parole period than the standard ratio would otherwise produce.

A 15 per cent discount was applied for the guilty plea, reducing the notional sentence of three and a half years to a total term of three years. The Form 1 cannabis matter was noted but treated as having minimal impact on the overall sentence, given it would likely have attracted only a fine if dealt with in the Local Court.

Orders Made

  • The offender was convicted of supplying a commercial quantity of MDMA (175 grams) on 16 December 2008 at Hay, New South Wales.
  • Total sentence of 3 years' imprisonment imposed.
  • Non-parole period of 15 months, commencing 12 April 2010 and expiring 11 July 2011.
  • Balance of term set at 1 year and 9 months, expiring 11 April 2013.
  • Release to parole ordered on 11 July 2011, with supervision by Probation and Parole pursuant to s 52 of the Crimes (Sentencing Procedure) Act 1999.
  • Parole conditions included: mandatory drug and alcohol counselling; random drug screening four times per month for the balance of the parole period; psychological treatment as agreed with the Probation and Parole Service.

Key Takeaways

  • The District Court confirmed that possession of a commercial quantity of drugs for supply can fall below the mid-range of objective seriousness where no actual supply has occurred and the potential for harm remained unrealised at the time of arrest.
  • Where an offender is very young at the time of offending, has a minimal criminal record, and demonstrates genuine rehabilitation prospects, those factors can collectively reduce the weight otherwise given to the standard non-parole period, even in a commercial drug supply case.
  • A guilty plea, assessed here at a 15 per cent discount, resulted in a six-month reduction from the notional head sentence of three and a half years.
  • Special circumstances were established on the basis of the offender's need for community-based psychological treatment, drug and alcohol rehabilitation, and supported abstinence from illicit substances, justifying a longer parole period relative to the non-parole period than the default ratio provides.
  • The source of funds used to purchase drugs (in this case, a victim's compensation payment) was part of the factual background considered in assessing objective criminality and the overall sentencing narrative, though it did not independently alter the legal analysis.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 52

Cases Cited
- R v Cuthbert [1967] 2 NSWR 329
- R v Rushby [1977] 1 NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- Lozanovski v The Queen [2009] NSWCCA 123
- R v Hearne (2007) 124 ACrimR 457
- R v Clarke (unreported, NSWCCA, 15 March 1990)

Texts
- Zahra et al, Drug Law in New South Wales (2nd ed)