Citation: R v Daley [2013] NSWDC 76
Court: District Court of New South Wales
Date: 18 April 2013
Judge: Berman SC DCJ
Background
The offender pleaded guilty to supplying a prohibited drug and escaping lawful custody. Police apprehended him during a drug detection dog operation in Kings Cross in the early hours of 29 April, after he was observed acting suspiciously near police and the dog. Upon arrival at the police station, he ran from custody before being recaptured and searched.
The search of the offender's person uncovered 32 ecstasy tablets and a small quantity of amphetamine. Police had also, with the offender's cooperation, accessed his iPhone and examined text messages on the device. Those messages proved significant to the sentencing proceedings.
The matter was initially presented to the court on the basis that the offender's supply activities were limited to giving one tablet each to two friends, with no payment involved. The sentencing judge was not satisfied that this reflected the full picture, and the factual basis for sentence was reconsidered after the Crown tendered screenshots of the iPhone messages.
Legal Issues
- Whether the escaping lawful custody offence (dealt with on a section 166 certificate) needed to be imposed cumulatively on any other sentence.
- What factual basis should apply to the drug supply charge, given a tension between the offender's account and the contents of the text messages.
- Whether the offender was trafficking to a substantial degree, which would have required exceptional circumstances before a non-custodial sentence could be considered.
- What form of sentence was appropriate in all the circumstances.
Decision
On the question of cumulation, both parties agreed after research that there was no obligation to impose a cumulative sentence for the common law offence of escape. The escape charge was also dealt with on a section 166 certificate, meaning the court's jurisdictional maximum for that offence was two years.
On the factual basis for sentencing, the judge rejected the limited account initially presented. The iPhone screenshots revealed that the offender had supplied drugs to a contact referred to as "Kiwi Michael," who had travelled approximately 40 minutes specifically to receive them, and that this supply involved payment. The messages also showed the offender had purchased 120 ecstasy tablets. His own evidence confirmed he had distributed a portion of those to friends staying in hotel rooms. The court found it could not sentence the offender on the basis that his conduct was limited to giving a single tablet to each of two friends.
The judge declined to find that the offender was trafficking to a substantial degree, accepting that the supplies to friends did not appear to involve payment, though noting the matter was a close one. Because that threshold was not reached, the offender was not required to demonstrate exceptional circumstances before a non-custodial order could be considered.
The court was nonetheless satisfied a custodial sentence was required, citing the significant quantity of drugs involved, the need for personal deterrence given the offender's less than frank evidence, and the need for general deterrence. The likely sentence was assessed at less than two years, and the offender was referred for assessment for an intensive corrections order, with bail granted in the interim.
Orders Made
- The offender to be assessed by the Department of Corrective Services for suitability to serve sentence by way of an intensive corrections order.
- Bail granted pending that assessment.
- Matter adjourned to 31 May 2013 for determination of the appropriate sentence.
Key Takeaways
- Text messages retrieved from a mobile phone can provide a sufficient basis for a sentencing court to reject a more favourable factual account put forward by an offender, even where that account had initially been accepted by the Crown.
- The District Court found that supply to a paying third party who travelled a significant distance to collect drugs is not consistent with a characterisation of minimal, non-commercial supply activity.
- A finding that trafficking was occurring "to a substantial degree" carries material sentencing consequences: the Court of Criminal Appeal has directed that full-time imprisonment is the only available sentence in such cases unless exceptional circumstances are established.
- Lack of candour with both police and the sentencing court was treated as a relevant consideration weighing against the offender, and influenced the weight given to otherwise positive pre-sentence material.
- An intensive corrections order remained available as an alternative to full-time custody where the trafficking threshold was not established, provided the offender was assessed as suitable by Corrective Services.
Legislation and Cases Referenced
Legislation:
- Section 166 of the relevant criminal procedure legislation (governing committal by certificate, limiting jurisdictional maximum to two years)
Cases:
- No specific cases were cited by name in the judgment text, though Berman SC DCJ referred to the general principle from the Court of Criminal Appeal that full-time imprisonment is the only available sentence for substantial trafficking absent exceptional circumstances.