Citation: R v Roland [2012] NSWDC 200
Court: District Court of New South Wales
Date: 7 September 2012
Judge: Berman SC DCJ
Background
Police attending the Field Day Music Festival in Sydney on New Year's Day 2012 observed a tall, visibly intoxicated man pick up a cigarette packet from the ground and then turn away when he noticed them approaching. On searching him, police found 23 ecstasy tablets in the packet and a mobile phone containing text messages evidencing drug supply activity dating back to around 20 December 2011.
The offender pleaded guilty to supplying a prohibited drug at the earliest opportunity, entitling him to a 25 per cent reduction in sentence. He had spent no time in custody prior to sentencing.
The offender acknowledged supplying ecstasy to approximately six friends and associates over the relevant period, primarily to fund his own drug habit. He was a young man from Sydney's Eastern Suburbs with a history of depression, prior drug-related matters in both NSW and Queensland, and an unfulfilled ambition to pursue basketball in the United States.
Legal Issues
- Whether the offender was trafficking to a "substantial degree," which would ordinarily require a full-time custodial sentence absent exceptional circumstances
- What length of sentence was appropriate given the objective circumstances and the offender's subjective background
- Whether the sentence, once determined, should be suspended or served by way of an intensive corrections order rather than full-time imprisonment
Decision
The court first assessed whether the supply reached the threshold of "trafficking to a substantial degree." His Honour found it did not, noting that the supplies involved relatively small amounts, a small number of recipients (around six), and a short timeframe of approximately ten days. His Honour observed that if any one of those three limiting factors had been absent, a full-time custodial sentence would have been inevitable.
On the question of sentence length, both the defence and the court agreed that imprisonment was required and that the term should not exceed two years. The defence sought a suspended sentence, but his Honour rejected that submission. A suspended sentence, the court held, would neither adequately deter the offender from future offending nor constitute sufficient punishment given the circumstances.
His Honour identified the offender's prospects of rehabilitation as "guarded" and placed significant weight on personal deterrence. The court noted that the offender's long history of depression appeared to be a driver of his drug use, and that his resort to supply was instrumental rather than entrepreneurial, but these factors did not justify a suspended sentence.
The court considered an intensive corrections order (ICO) as the appropriate alternative to full-time imprisonment. An ICO was seen as achieving both punitive and rehabilitative purposes: it restricts freedom, requires supervision and counselling, and includes regular urinalysis. The offender was referred for assessment of his suitability for an ICO before the order could formally be imposed.
Orders Made
- Bail continued to 10:00am on 2 November 2012
- The section 166 certificate matter dismissed
- Orders made for confiscation of the mobile telephone
- Offender referred for assessment of suitability to serve his sentence by way of an intensive corrections order
- Drugs ordered to be destroyed
Key Takeaways
- The District Court applied a three-factor analysis to the "substantial degree" trafficking threshold, considering the quantity of drugs, the number of recipients, and the duration of supply activity. The absence of all three aggravating factors was decisive in finding the threshold was not met.
- Where an offender narrowly avoids the substantial-degree threshold, a full-time custodial sentence is not automatically avoided. The court retains a separate discretion to impose imprisonment on general sentencing principles.
- A suspended sentence was held to be insufficient where personal deterrence was a significant sentencing consideration and the offender's rehabilitation prospects were no better than guarded.
- An intensive corrections order can satisfy the dual aims of punishment and rehabilitation, particularly where supervised conditions, counselling, and urinalysis testing are seen as appropriate responses to an offender's underlying drug dependency.
- Underlying mental health conditions, here long-standing depression, formed part of the court's contextual assessment of the offending but did not displace the need for a meaningful custodial response.
Legislation and Cases Referenced
No specific legislation or cases were cited in the judgment text or accompanying metadata. The reference to "s 166 certificate" appears to relate to a proceeds of crime or drug confiscation provision, though the specific Act was not identified in the material provided.