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District Court 2 June 2010

R v STACEY

[2010] NSWDC 151

Drugs
CRIMINAL LAW SENTENCE SUPPLY ONGOING SUPPLY MDMA PROCEEDS OF CRIME

Citation: R v Stacey [2010] NSWDC 151
Court: District Court of New South Wales
Date: 2 June 2010
Judge(s): Berman SC DCJ

Background

The offender, a 21-year-old first-time offender, appeared for sentence after pleading guilty in the Local Court to multiple drug supply offences. He had been using cocaine and began supplying MDMA (ecstasy) to fund that habit. Police deployed an undercover officer who made a series of controlled purchases from the offender between late June and late July 2009.

In total, the offender supplied 700 MDMA tablets to the undercover officer across five transactions. When arrested on 6 August 2009, police found cash derived from drug supply and, on executing a search warrant, located a further quantity of MDMA and powder amounting to at least the equivalent of 200 tablets. The total quantity involved was approximately 900 tablets, weighing around 240 grams, which is close to twice the commercial quantity threshold for MDMA.

The offending also included dealing with proceeds of crime and possession of a single tab of LSD found at the time of arrest. The offender had been in custody since his arrest and had no prior criminal history.

  • What sentence appropriately reflected the objective gravity of large-scale MDMA supply approaching twice the commercial quantity?
  • What weight should be given to the offender's youth, lack of prior convictions, guilty plea, and diagnosed Attention Deficit Disorder (ADD)?
  • Whether serving a sentence in protection (due to the offender's father having been a prison officer) constituted a mitigating factor warranting adjustment to the sentence.
  • Whether special circumstances existed to justify varying the standard ratio between the non-parole period and the head sentence.

Decision

The court emphasised that the sentence had to reflect the objective gravity of the conduct. Supplying approximately 900 MDMA tablets in quantities approaching twice the commercial threshold was, in the court's assessment, very serious offending. This finding foreclosed the submission by the defence that ten months in custody would be sufficient.

The court acknowledged several mitigating factors. The offender had pleaded guilty in the Local Court, attracting a 25 per cent sentence reduction. His youth, absence of prior criminal history, and apparent prior good character all weighed in his favour. His ADD diagnosis was accepted as relevant to his drug use, given a psychiatrist's evidence that people with ADD are particularly drawn to self-medication through drugs. However, the court drew a clear distinction: the ADD condition had much less bearing on the deliberate and repeated decision to supply drugs at a commercial scale.

The possibility that the offender would serve his entire sentence in protection, potentially in harsher conditions than ordinary custody, was taken into account as a moderating factor. The court also found special circumstances, based on the offender's youth and the fact that this was his first time in custody, justifying a longer than usual parole period to support his rehabilitation.

The offender's prospects of rehabilitation were assessed as good. He had ceased drug use since arrest, had plans to relocate and live with family in Newcastle, had employment lined up, and had agreed to pursue psychiatric treatment for his ADD. Despite these positive factors, the court held that significant punishment remained necessary.

Orders Made

  • Two supply offences (25 June and 6 August 2009): fixed terms of 18 months each, commencing 6 August 2009.
  • Ongoing supply offence: non-parole period of one year (6 August 2010 to 5 August 2011), with a head sentence of three years.
  • Dealing with proceeds of crime: fixed term of two years, commencing 6 August 2009.
  • Possession of a single LSD tab: dealt with under section 10A of the Crimes (Sentencing Procedure) Act 1999 (no conviction recorded).
  • Backup charge of possessing a prohibited drug: dismissed.
  • Effective sentence: non-parole period of two years, total sentence of four years; eligible for parole on 5 August 2011.
  • Drugs ordered to be destroyed.

Key Takeaways

  • The District Court confirmed that the objective seriousness of large-scale drug supply sets a floor below which mitigating personal factors cannot bring a sentence, regardless of a young offender's otherwise positive background.
  • A diagnosed mental health condition (here, ADD) may be relevant to explaining the pathway into drug use but carries substantially less weight as mitigation for the deliberate commercial decision to supply drugs at scale.
  • Serving a custodial sentence in protection, particularly where it may involve harsher conditions, is a factor a sentencing court can take into account when calibrating the overall sentence.
  • Special circumstances justifying a departure from the standard non-parole to head sentence ratio were established by the combination of the offender's youth and the fact that this was his first period in custody, each factor supporting a longer supervisory period on parole.
  • A 25 per cent discount for an early guilty plea entered in the Local Court was applied, consistent with the sentencing principles under the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including section 10A (conviction without penalty)

Cases cited: None cited in the judgment.