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District Court 5 May 2011

R v French

[2011] NSWDC 68

Drugs
CRIMINAL LAW SENTENCE HEARING DRUG SUPPLY POSSESSION OF DRUGS BENZYL PIPERAZINE

Citation: R v French [2011] NSWDC 68
Court: District Court of New South Wales
Date: 5 May 2011
Judge: Berman SC DCJ

Background

The offender was intercepted by police in March 2010 while carrying approximately 785 tablets of 1-benzyl piperazine, a drug broadly similar to ecstasy. He had agreed, with considerable reluctance, to act as an intermediary and courier between two friends, one a drug seller and the other a buyer, after the buyer refused to proceed without someone he knew acting as go-between. The quantity involved exceeded the 250-gram threshold for a "commercial quantity" under the relevant drug legislation.

Police approached the offender and a companion on suspicion of drug supply activity. The offender made only a minimal attempt to flee before surrendering. He was arrested, remanded in custody, and spent 109 days at Silverwater prison before being granted bail by the Supreme Court.

At the sentence hearing, the defence submitted that the offender's moral culpability was significantly reduced by a combination of psychiatric conditions, including ADHD, bipolar disorder, and substance abuse disorder, and that a sentence of no more than two years was appropriate, making him eligible for referral for an Intensive Corrections Order (ICO).

  • Whether the offender was "trafficking to a substantial degree," which under established authority ordinarily attracts a full-time custodial sentence absent exceptional circumstances.
  • Whether, if trafficking to a substantial degree was established, exceptional circumstances existed to justify a non-custodial or alternative sentence.
  • Whether a sentence of no more than two years was appropriate in the circumstances, making the offender eligible for assessment for an ICO.
  • How the offender's psychiatric conditions affected his moral culpability, the weight to be given to general deterrence, and the form of sentence.

Decision

Berman SC DCJ found that, objectively, the offence fell significantly below the middle of the range of seriousness for commercial drug supply. Although the quantity exceeded the commercial threshold, the offender's role was that of a reluctant, one-off intermediary, and there was no evidence of involvement in drug supply on any other occasion.

The court found the offender was not trafficking to a substantial degree, relying on his limited and reluctant role. This meant there was no requirement to identify exceptional circumstances to justify a non-custodial sentence. The judge added, however, that even if that conclusion were wrong, exceptional circumstances did exist on the facts.

Psychiatric evidence from Dr Nicholas Cassimatis, accepted without cross-examination, established that the offender was experiencing a hypomanic episode at the time of the offence, with impaired judgment and disinhibited behaviour exacerbated by excessive use of his ADHD medication and recreational drugs. Applying the principles from R v Hemsley, the court held that this mental illness reduced the offender's moral culpability, made a sentence weighted toward general deterrence inappropriate, and meant a custodial sentence would weigh more heavily on him than on other offenders.

Taking into account the 109 days already served in custody and the subsequent lengthy period on bail under stringent conditions including a daily reporting obligation and a curfew, the court was satisfied that the remaining custodial term would be no more than two years. The court referred the offender for assessment for an ICO, noting that such an order would both punish the offender and more effectively promote his rehabilitation than a return to full-time custody.

Orders Made

  • The offender was convicted.
  • The court was satisfied that no form of sentence other than imprisonment was appropriate, and that the sentence would be no more than two years.
  • The offender was referred for assessment as to his suitability for an Intensive Corrections Order.
  • Bail was continued pending the ICO assessment.
  • The matter was listed for review of the ICO assessment report on a date suitable to the parties.

Key Takeaways

  • The District Court confirmed that whether an offender was "trafficking to a substantial degree" is not determined solely by the quantity of drugs involved; the offender's role and the circumstances of their participation are also relevant considerations.
  • A commercial quantity of drugs does not automatically establish substantial trafficking where the offender acted as a reluctant, one-off intermediary rather than an active participant in an ongoing supply enterprise.
  • Under the principles affirmed in R v Hemsley, psychiatric illness can bear on sentencing in three distinct ways: by reducing moral culpability where the illness contributed to the offence, by diminishing the appropriateness of general deterrence as a sentencing objective, and by recognising that custody weighs more heavily on a mentally unwell offender.
  • Time spent in pre-sentence custody and periods of restrictive bail conditions can both be taken into account in calculating the remaining custodial term, potentially bringing a sentence within the two-year threshold required for ICO eligibility.
  • Berman SC DCJ noted that the sentencing exercise involves a single discretionary judgment, not two strictly sequential decisions, even where authorities frame the "substantial trafficking" question and the "exceptional circumstances" question as distinct inquiries.

Legislation and Cases Referenced

Cases:
- Clarke v R [2009] NSWCCA 49 (principle that substantial drug traffickers ordinarily receive full-time custody absent exceptional circumstances)
- R v Hemsley [2004] NSWCCA 228 (three-part framework for the effect of mental illness on sentencing, per Sperling J)

Legislation:
- No specific legislation was cited in the judgment text. The offences related to supply of a commercial quantity of a prohibited drug, carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.