Citation: R v Sen Van TRAN [2015] NSWDC 324
Court: District Court of New South Wales
Date: 16 October 2015
Judge: Knox SC DCJ
Background
The offender was a former heroin addict who had been enrolled in a supervised drug treatment programme and prescribed buprenorphine-based medications (Subutex and Suboxone) by his treating doctor. Under the programme's dispensing guidelines, the supervising pharmacist was required to watch the offender ingest the medication sublingually at the pharmacy counter.
The offender's case at trial was that he had secretly diverted the medication from his mouth rather than swallowing it, retaining the crushed or powdered tablets at home for his own later personal use. When police searched his bedroom in May 2011, they found a quantity of buprenorphine fragments consistent with the pharmaceutical products he had been prescribed, along with syringes, ten mobile phones, two sets of electronic scales, and other items the Crown characterised as consistent with drug supply.
A jury convicted the offender of supplying a prohibited drug in an amount not less than the large commercial quantity, relying on the "deemed supply" provision in s 29 of the Drug Misuse and Trafficking Act 1985 (NSW). There was no evidence of any actual supply to another person, and the Crown's case was entirely circumstantial. The sentence proceedings were delayed substantially by difficulties obtaining psychiatric and Justice Health reports.
Legal Issues
- Whether the jury's rejection of the personal-use defence was properly reflected in the sentencing assessment of criminality
- How to characterise the objective seriousness of a deemed-supply offence where no actual supply is proven
- Whether time served in custody on unrelated charges (of which the offender was acquitted) could be credited against the present sentence
- Whether special circumstances existed justifying a departure from the statutory non-parole period ratio
- The appropriate head sentence and non-parole period given the offender's background, the nature of the offence, and available mitigating factors
Decision
Knox SC DCJ assessed the objective seriousness of the offence as below mid-range, giving significant weight to two features of the Crown's case: the entirely circumstantial nature of the evidence, and the absence of any proven actual supply to another person. His Honour nonetheless identified a meaningful aggravating feature: the offence involved the subversion of a supervised drug diversion programme specifically designed to prevent buprenorphine from being diverted. That element attracted particular denunciatory and deterrent weight.
On the issue of custody credits, the court applied established authority from the Court of Criminal Appeal in R v Niass and Hampton v R and refused to credit the offender with time spent on remand for the separate charges on which he was ultimately acquitted. Only the 58 days in custody directly attributable to this offence, together with the further 147 days in custody following the sentence adjournment, were taken into account, totalling 205 days. The head sentence was backdated accordingly.
The court found special circumstances warranting a departure from the standard 2:1 head-sentence-to-non-parole ratio. The offender's age, his limited English-language ability (which would create additional hardship during imprisonment), and his apparent stability on a current methadone programme all supported a reduced ratio. The non-parole period was set at approximately 60 per cent of the head sentence rather than the statutory two-thirds.
Orders Made
- The offender was sentenced to a head sentence of nine years' imprisonment.
- A non-parole period of five years and three months, backdated to commence on 24 March 2015 and to expire on 23 June 2020.
- A balance of term of three years and nine months, expiring on 23 March 2024.
- Upon release to parole, the offender was recommended to be subject to Probation and Parole supervision, required to give seven days' notice of any change of residential address, and subject to random urinalysis.
Key Takeaways
- A conviction under ss 25 and 29 of the Drug Misuse and Trafficking Act 1985 (NSW) can rest entirely on deemed supply where the defendant possesses a quantity of prohibited drug at or above the traffickable amount and fails to prove possession for a purpose other than supply, even where no actual supply to any third party is established.
- Subverting a supervised pharmaceutical diversion programme, designed specifically to prevent prohibited drugs from leaving the point of dispensing, constitutes a meaningful aggravating circumstance that reinforces the need for general deterrence at sentencing.
- Under R v Niass and Hampton v R, a sentencing court is not permitted to credit an offender with time spent in pre-sentence custody on separate charges, even where those charges result in acquittal; only custody directly referable to the offence being sentenced counts.
- The objective seriousness of a deemed-supply offence may be assessed as below mid-range where the Crown's case is entirely circumstantial and there is no evidence of actual supply, notwithstanding the large commercial quantity involved.
- Limited English proficiency and the additional hardships that flow from it during custody can contribute to a finding of special circumstances, warranting a departure from the standard statutory non-parole period ratio.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25 and 29
Cases
- Adams v R [2008] HCA 15; 234 CLR 143
- Chen v R [2011] NSWCCA 145
- Deakin v R [2014] NSWCCA 121
- Hampton v R [2014] NSWCCA 131
- Hsu v R [2012] NSWCCA 248
- Kwon v R [2011] NSWCCA 58
- Melikian v R [2008] NSWCCA 156
- Paxton v R (2011) 219 A Crim R 104
- R v AZ [2011] NSWCCA 43
- R v Bimahendali [1999] NSWCCA 409; 109 A Crim R 355
- R v Niass (unreported, NSWCCA, 16 November 1998)
- Tan v R [2014] NSWCCA 96
- Wong v R; Leung v R [2001] HCA 64; 207 CLR 584