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District Court 23 March 2012

R v Palmieri

[2012] NSWDC 279

Drugs
CRIMINAL LAW SENTENCE SUPPLY PROHIBITED DRUG METHYLAMPHETAMINE

Citation: R v Palmieri [2012] NSWDC 279
Court: District Court of New South Wales
Date: 23 March 2012
Judge: Berman SC DCJ

Background

Police stopped the offender in the early hours of the morning in Artarmon after his manner of driving attracted attention. A roadside drug assessment led to a search of the vehicle, which uncovered 6.89 grams of methylamphetamine at 73% purity, several small resealable bags with crystal residue, multiple mobile phones, and notebooks later admitted to be drug ledgers.

The offender initially maintained the drugs were for personal use, including in statements made to the Probation and Parole Service during preparation of his pre-sentence report. He ultimately pleaded guilty, at a late stage, and conceded that some of the drugs were intended for sale.

The offender was born in 1964, had a long history of employment in the concreting industry, and was on bail for a drug-driving offence at the time of the conduct. His partner had developed drug-induced psychosis and lost custody of her children as a result of amphetamine use.

  • Whether the offender was trafficking in prohibited drugs "to a substantial degree," which would ordinarily require a full-time custodial sentence absent exceptional circumstances.
  • What weight to give to the offender's subjective circumstances, including his partner's situation, his period of pre-sentence custody, and his compliance with bail conditions.
  • Whether a suspended sentence was an appropriate sentencing disposition in the circumstances.

Decision

The central sentencing question turned on whether the prosecution had established substantial-degree trafficking. Berman SC DCJ found this had not been demonstrated. The evidence about the drug ledgers was insufficiently detailed: the court was not told what amounts, names, or monetary figures the ledgers contained. Combined with the relatively small quantity of drug and the absence of any prior drug supply offences, the court was not satisfied the trafficking reached the threshold required.

Because substantial-degree trafficking was not established, the offender was not required to demonstrate exceptional circumstances before a non-custodial option could be considered. The court acknowledged that, in principle, a custodial sentence of some kind was still warranted, as the offender's own counsel conceded.

The court settled on a suspended sentence, noting that the combination of slightly more than two months of pre-sentence custody and subsequent compliance with restrictive bail conditions had reduced the effective sentence length to a point where suspension was available. The Crown accepted that a suspended sentence was, just, within range. The late guilty plea was also identified as a contributing factor to the reduced sentence length.

Berman SC DCJ was direct in warning the offender that any breach of the bond, including detection of illicit drug use, would result in immediate full-time imprisonment with no prospect of an intensive corrections order or home detention.

Orders Made

  • The offender was sentenced to imprisonment for two years.
  • Pursuant to s 12 of the Crimes (Sentencing Procedure) Act, execution of the sentence was suspended, with the offender required to enter a good behaviour bond for the full two-year period.
  • Bond conditions included: no further offences of any kind; no use of illicit drugs; supervision by the Probation and Parole Service; regular and frequent drug testing; attendance at and satisfactory completion of the SMART program; notification to the court registry of any change of residential address; and attendance before the court if called upon.
  • The s 166 charge was withdrawn.

Key Takeaways

  • The District Court declined to find substantial-degree drug trafficking where the prosecution could not establish the content or significance of drug ledgers found on the offender, leaving the court with only a modest quantity of drug and an absence of prior supply offences to assess.
  • Where substantial-degree trafficking is not established, an offender charged with drug supply is not required to demonstrate exceptional circumstances before a non-custodial sentence may be imposed.
  • A suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act remained available because pre-sentence custody and restrictive bail conditions reduced the effective sentencing range to one that permitted suspension.
  • Subjective factors including an offender's stable employment history and the welfare impact on a vulnerable partner and her children may form part of the "general mix" of considerations, even where they fall short of exceptional hardship.
  • The sentencing court treated the late guilty plea as a relevant factor in arriving at a sentence length that made the suspended sentence option available, though this benefit was expressly qualified by the lateness of the plea.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 166

Cases:
No cases were cited in the judgment.