Citation: R v Follett [2011] NSWDC 248
Court: District Court of New South Wales
Date: 18 March 2011
Judge: Nicholson SC, DCJ
Background
The offender was a young, unemployed woman living with her de facto partner, her infant son, and her family in Wellington, NSW. She was caught up in a broader police operation (Strike Force Grandchester) targeting a drug supply network operating between Sydney, Wellington, and Dubbo. Her de facto partner, Kylie Thompson, was identified as a key associate in that network.
Between January and April 2010, the offender was monitored and recorded agreeing to supply small quantities of methylamphetamine on multiple occasions from a residential address in Wellington. She received the drugs from her de facto partner and supplied them to end users for a small material or financial reward. The total quantity involved across all three charges was just under two grams.
The offender was committed to the District Court for sentencing on two counts of ongoing supply of methylamphetamine and one count of supplying a small quantity. She had been held in custody from 19 July 2010 to 21 October 2010 after bail was refused.
Legal Issues
- What was the appropriate objective assessment of the criminality involved in two counts of ongoing supply of methylamphetamine totalling approximately 1.98 grams?
- Whether the period of pre-sentence custody already served was sufficient to reflect the offender's role and culpability, displacing any further full-time custodial sentence.
- Whether a good behaviour bond under s 9 of the Crime (Sentencing Procedure) Act was the appropriate sentencing disposition.
- Whether a separate supply charge could properly be placed on a Form 1 (a procedural mechanism allowing a court to take additional charges into account without formally convicting and sentencing on them separately) alongside ongoing supply charges.
Decision
His Honour assessed the objective criminality as relatively modest. The total quantity supplied fell just below two grams of methylamphetamine: double the "small quantity" threshold of one gram under the Drug Misuse and Trafficking Act, but well short of the three-gram trafficable quantity and far below the 250-gram commercial quantity. The offending was characterised as small-scale street supply to end users, conducted in partnership with and at the direction of the offender's de facto partner.
Nicholson SC, DCJ acknowledged the legislature and courts have consistently treated drug supply as serious antisocial conduct, noting the particular harms associated with methylamphetamine. Despite that general seriousness, his Honour concluded the totality of criminality here did not warrant a further full-time custodial sentence, particularly given the absence of prior convictions and the approximately three months of pre-sentence custody already served. The Crown conceded that the time already served may have adequately reflected the offender's role, a submission with which his Honour agreed.
On the procedural question, his Honour noted some reservation about the legal correctness of placing the supply charge on a Form 1 alongside ongoing supply charges. However, because both parties consented and any technical advantage would effectively be lost elsewhere in the proceedings, his Honour was content to proceed on that basis.
The offender was convicted on both ongoing supply charges and the Form 1 matter, and sentenced to good behaviour bonds with supervision conditions.
Orders Made
- Convicted on the first ongoing supply charge (18 January to 18 February 2010) and sentenced to a good behaviour bond of 15 months under s 9 of the Crime (Sentencing Procedure) Act.
- Convicted on the second ongoing supply charge (17 February to 20 March 2010) and sentenced to a concurrent good behaviour bond of 15 months.
- Both bonds required the offender to: remain of good behaviour; provide a current address to the Registry; submit to Probation and Parole supervision for such periods as required (with a mandatory minimum of eight months' supervision that could not be waived); and submit to random urine analysis up to six times per month, with failure to attend or provision of non-compliant samples deemed a breach.
- The supply charge (1 to 3 April 2010) was taken into account on the Form 1; the offender was convicted of that matter.
- Bonds were to be entered in the Registry before the offender left the courthouse.
Key Takeaways
- The District Court confirmed that the quantity of drugs supplied is a central factor in assessing objective seriousness: quantities well below the trafficable threshold, supplied to end users for minimal reward, may reduce the gravity of ongoing supply offences significantly.
- Pre-sentence custody served after bail refusal can, in appropriate cases, be sufficient to reflect an offender's culpability for ongoing drug supply, removing the need for a further full-time custodial sentence.
- A good behaviour bond under s 9 of the Crime (Sentencing Procedure) Act remains available even for ongoing drug supply convictions, where objective seriousness and subjective circumstances together justify a non-custodial outcome.
- Where an offender supplies drugs under the direction and in partnership with another person, that relational dynamic is a relevant factor in assessing individual culpability at sentencing.
- Nicholson SC, DCJ expressed doubt about the technical correctness of placing a supply charge on a Form 1 alongside ongoing supply charges, but proceeded by consent, noting that any procedural advantage would have been lost in any event.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act (NSW): definitions of small, trafficable, indictable, and commercial quantities; s 25A (ongoing supply offence)
- Crime (Sentencing Procedure) Act (NSW): s 9 (good behaviour bonds); Form 1 procedure
Cases cited: No cases were cited in the judgment.