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District Court 2 December 2015

R v Barden

[2015] NSWDC 395

Drugs
CRIMINAL LAW SENTENCE SUPPLY OF 8.28 GRAMS OF “NEXUS” REGARDED BY HIS EMPLOYER LOW RISK OF RECIDIVISM

Citation: R v Barden [2015] NSWDC 395
Court: District Court of New South Wales
Date: 2 December 2015
Judge: Neilson DCJ

Background

The offender, a 26-year-old man at the time of sentencing, pleaded guilty to knowingly taking part in the supply of 8.28 grams of the drug "Nexus" (4-bromo-2,5-dimethoxyethylamine) in tablet form at Woolooware Railway Station on 1 April 2015. Police first noticed him urinating next to a ticket booth. When they approached, he threw a plastic bag and cash onto the ground behind them.

The items he discarded included 27 Nexus tablets bearing a Nike Swoosh logo and six capsules of ecstasy. A search of his person also turned up 0.13 grams of cocaine in a trouser pocket. He told police he had obtained the tablets from a person near Cronulla Surf Club for a mate to take to a party in Bondi.

The court accepted an inference that the offender, who was travelling with roughly eight friends to a concert or dance party at Bondi, had obtained the Nexus tablets to share among that group. Four additional matters were placed before the court on a Form 1 (a procedural mechanism allowing related offences to be taken into account at sentence without separate conviction): possession of ecstasy, possession of cocaine, dealing with suspected proceeds of crime, and public urination.

  • What sentence was appropriate for the principal offence of supply of a prohibited drug, carrying a maximum of 15 years imprisonment and/or a $220,000 fine?
  • Did the circumstances of the offending suggest a commercial or trafficking operation, or a social supply for personal use among friends?
  • What weight should be given to the offender's personal circumstances, including his history of drug abuse, diagnosed stimulant use disorder, degree of intoxication at the time, and subsequent rehabilitation?
  • Was a suspended sentence appropriate, having regard to the offender's low risk of recidivism and progress in treatment?

Decision

Neilson DCJ found that the circumstances of the offending did not suggest any commercial drug operation or trafficking. The offender's high level of intoxication at the time, the low purity of the Nexus tablets (only 1.5%), and the context of attending a social event with friends all pointed away from organised dealing. His Honour noted that a drug trafficker would not ordinarily be operating in such an intoxicated state.

The court accepted that the offender had a genuine history of substance abuse, having progressed from alcohol and cannabis in his mid-teens to ecstasy, amphetamines, and occasional cocaine use. He had been diagnosed with stimulant use disorder and had been engaged with a psychologist since July 2015. At the time of sentencing he had been abstinent from illicit drugs for approximately three months and was well-regarded by his employer.

His Honour began the sentencing exercise with a head sentence of 16 months, which was reduced to 12 months to reflect the maximum 25% utilitarian discount for an early guilty plea. The four Form 1 matters were taken into account in arriving at that figure.

The court determined that a fully suspended sentence was appropriate given the offender's low risk of recidivism, his rehabilitation progress, his stable home environment, and the absence of any commercial dimension to the offending. The one-year sentence was suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999 and replaced with a good behaviour bond of equal length.

Orders Made

  • The offender was convicted and sentenced to imprisonment for one year.
  • Execution of the sentence was suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999.
  • The offender was released on a good behaviour bond for one year on conditions including: appearing before the court if called upon; maintaining good behaviour; residing at his Grays Point address or notifying the Registrar of any change of address; and continuing treatment with his psychologist until discharged from that care.
  • Pursuant to section 18(1) of the Confiscation of Proceeds of Crime Act 1989, the $200 cash found at Woolooware Railway Station was forfeited to the Crown and ordered to be disposed of forthwith.
  • The seized drugs were ordered to be destroyed.

Key Takeaways

  • The District Court drew a clear distinction between social supply among a group of friends and commercial drug trafficking, treating the absence of any commercial operation as a significant mitigating factor in assessing the appropriate sentence.
  • A high level of intoxication at the time of the offending was treated as consistent with the inference that no organised dealing was occurring, rather than as an aggravating feature.
  • Very low drug purity (1.5% in the Nexus tablets) was noted by the court as a relevant circumstance, with His Honour observing the offender may himself have been deceived about the quality of what he purchased.
  • A 25% utilitarian discount for an early guilty plea was applied, reducing the head sentence from 16 months to 12 months before the suspended sentence order was made.
  • Demonstrated rehabilitation, abstinence from illicit drugs, continued engagement with psychological treatment, and a low assessed risk of recidivism collectively supported the suspension of the custodial term.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 12 (suspended sentences)
- Confiscation of Proceeds of Crime Act 1989 (NSW), sections 9(3)(a) and 18(1)

Cases
- R v Bardo (unreported, NSW Court of Criminal Appeal, Hunt CJ at CL, Sheller JA and Badgery-Parker JJ, 14 July 1992)
- R v Gip [2006] NSWCCA 115
- R v Ozer (unreported, NSW Court of Criminal Appeal, Hunt CJ at CL, Allen and Mathews JJ, 9 July 1993)