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District Court 29 June 2012

R v Jesse POLOCK

[2012] NSWDC 293

Drugs
CRIMINAL LAW PARTICULAR OFFENCE SUPPLY PROHIBITED DRUG DEMONSTRATED REHABILITATION CEASED DRUG USE STRONG WORK ETHIC

Citation: R v Jesse POLOCK [2012] NSWDC 293
Court: District Court of New South Wales
Date: 29 June 2012
Judge(s): Cogswell SC DCJ

Background

The offender, a young man from Maroubra who had gained local recognition for his surfing ability, drifted into drug use and dealing after falling in with an adverse peer group. Over a period of approximately two months in 2008, he conducted an ongoing business selling cocaine, with intercepted mobile phone communications revealing multiple transactions involving quantities up to 28 grams (one ounce). Police searched his home in September 2009 and he was arrested and charged under s 25(1) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of 15 years imprisonment.

The offender did not have a clear criminal record. He had previously received a three-year good behaviour bond for a separate supply offence occurring in 2007, and a suspended sentence for dealing with the proceeds of crime.

By the time of sentencing in June 2012, approximately four years had passed since the offending and two years since he was charged. During that intervening period, he had ceased drug use, secured a traineeship with a local council, qualified as a surf and sea rescuer, and begun speaking to groups of young offenders about his own experiences.

  • Whether a suspended sentence was available and appropriate for a drug supply offence, given the Court of Criminal Appeal's established position that trafficking in drugs ordinarily requires a custodial sentence.
  • What weight should be given to delay, youth, immaturity at the time of offending, demonstrated rehabilitation, remorse, and a guilty plea when determining the appropriate sentence.
  • What discount should apply for the guilty plea.

Decision

Cogswell SC DCJ acknowledged at the outset that the Court of Criminal Appeal has consistently held that those engaged in drug trafficking must ordinarily face a gaol sentence. The Crown Prosecutor accepted this principle but submitted that the circumstances here were sufficiently unusual to make a suspended sentence a non-erroneous exercise of discretion. His Honour agreed.

The sentencing judge placed significant weight on the offender's demonstrated rehabilitation. This was not a case of a person hoping to rehabilitate in the future; the evidence established that rehabilitation had already occurred. The pre-sentence report from the Probation and Parole Service assessed him as low risk and indicated that supervision or intervention programs were not required. A forensic psychologist confirmed the offender had matured considerably and expressed genuine deep regret. His supervisor at Waverley Council described him as an outstanding trainee who had not yet reached his potential.

Several factors combined to justify suspension of the sentence: the four-year delay between offending and sentencing; the offender's youth and relative immaturity at the time of the conduct; the strength and credibility of his rehabilitation; his contribution to the community as a rescuer and as a speaker to young offenders; and his genuine, severe remorse accepted by the court as a true expression of contrition. His Honour referred to the Court of Criminal Appeal's observations in R v Hearne regarding the relevance of youth and immaturity in this context.

A 10 percent discount was applied for the guilty plea, agreed by both parties. The court assessed the appropriate sentence before discount at 20 months imprisonment, reduced to 18 months after the guilty plea discount.

Orders Made

  • The offender was convicted of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985.
  • Sentenced to 18 months imprisonment.
  • Pursuant to s 12(1) of the Crimes (Sentencing Procedure) Act 1999, the execution of the whole sentence was suspended for the entire 18-month period.
  • The offender was released on condition that he enter into a good behaviour bond for 18 months, subject to conditions including reporting to the Probation and Parole Service, not leaving New South Wales without permission, and notifying the Registrar of any change of address.

Key Takeaways

  • The District Court confirmed that a custodial sentence remains the orthodox outcome for drug trafficking offences, consistent with Court of Criminal Appeal authority, but that a suspended sentence is not automatically precluded where the evidence strongly supports it.
  • A combination of factors, including significant delay between offending and sentencing, youth and immaturity at the time of the conduct, and concrete, proven rehabilitation, can together justify suspension of a sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999.
  • Demonstrated rehabilitation carries substantially more weight than anticipated rehabilitation. The sentencing court drew a clear distinction between an offender who is expected to improve and one who has already done so.
  • A 10 percent guilty plea discount applied where the plea, though not at the earliest opportunity, was accepted by both parties as warranting that reduction.
  • Where a suspended sentence is imposed with an attached term of imprisonment, a subsequent breach carries very limited judicial discretion to avoid a custodial outcome, as the sentencing judge explained directly from the bench.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases
- R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451