Citation: R v Zrinski [2015] NSWDC 417
Court: District Court of New South Wales
Date: 15 May 2015
Judge: Berman SC DCJ
Background
The offender was charged in connection with events on 21 October 2012, when police observed her and two others in a parked vehicle. A search uncovered 20 MDMA tablets (6.156 grams total weight), a small quantity of cocaine, and $100 in cash for which the offender could offer no reasonable explanation. She had possessed the MDMA tablets for the purpose of supply, having assisted her then-boyfriend by selling them at parties.
A separate offence arose from the same incident: the offender told police that certain drugs belonging to her boyfriend were hers, thereby hindering the police investigation into the true ownership of those drugs. The cocaine possession and the goods-in-custody charge (relating to the cash) were placed on a Form 1, meaning they were taken into account in the sentence for the principal supply offence rather than sentenced separately.
The matter was first adjourned under section 11 of the Crimes (Sentencing Procedure) Act to allow the offender an opportunity to demonstrate rehabilitation. Over the following 12 months, the offender appeared before the court at least six times. Despite repeated promises, she failed to produce a single urinalysis result and admitted to continued drug use. Her attitude towards the proceedings was also noted as poor throughout the process.
Legal Issues
- Whether the offender was "trafficking to a substantial degree," which would trigger a presumption in favour of full-time custody under Court of Criminal Appeal authority
- What weight to give the offender's failure to demonstrate rehabilitation over the adjournment period, balanced against the principle that the sentence must address the original offences
- Whether a suspended sentence of imprisonment was appropriate given poor prospects of compliance and ongoing drug use
- What discount to apply for the early guilty plea and assistance to authorities
Decision
His Honour found that the offender was not trafficking to a substantial degree. The 20 tablets, while a significant quantity, were not part of an ongoing operation, and the offender had no prior drug supply convictions. Accordingly, she was not required to demonstrate exceptional circumstances before a non-custodial sentence could be considered, though full-time custody remained a sentence of last resort.
His Honour accepted that the past 12 months had demonstrated poor prospects of rehabilitation, and that the offender appeared to believe she could avoid consequences through dishonesty. However, the court was careful to note that it was sentencing for the original offences, not for the failure to rehabilitate during the adjournment period.
His Honour discounted the sentence by 40 per cent to reflect the early guilty plea and assistance to authorities. The court was also influenced by the nature of the likely risk: while there was a real prospect the offender would breach the good behaviour condition through continued drug use, the risk of serious further offending (such as further supply) was assessed as relatively low on the material available.
In the circumstances, including the assistance provided to authorities, his Honour departed from full-time custody and imposed a suspended sentence of 18 months imprisonment, with a range of strict supervisory conditions attached to the bond. The court observed that a future breach would most likely result in the full-time custodial sentence the Crown had sought on this occasion.
Orders Made
- Hindering police (s 166 certificate matter): Conviction recorded under section 10A of the Crimes (Sentencing Procedure) Act, with no further penalty imposed.
- Supply prohibited drug (taking into account cocaine possession and goods in custody on Form 1): Sentence of 18 months imprisonment, suspended under section 12 of the Crimes (Sentencing Procedure) Act on condition the offender enter a good behaviour bond for the full 18-month period.
- Bond conditions included:
- Good behaviour throughout the bond period
- Supervision by the Probation and Parole Service, including any recommended psychiatric, psychological, or drug and alcohol counselling
- Compliance with all prescribed medication
- Residing with her father every night, unless prior written permission for overnight absence is granted by the Probation and Parole Service
Key Takeaways
- The District Court confirmed that the Court of Criminal Appeal's presumption in favour of full-time custody for those trafficking to a substantial degree did not apply where there was no evidence of an ongoing supply operation and only 20 tablets were involved.
- A sentencing court must sentence for the original offences, not for an offender's failure to demonstrate rehabilitation during an adjournment period, though poor rehabilitation prospects remain a relevant consideration.
- Where an offender's likely future non-compliance involves continued personal drug use rather than serious further offending, a suspended sentence is not necessarily precluded, even where breach is considered probable.
- A 40 per cent discount was applied to reflect a combination of early guilty plea and assistance to authorities, with the court expressly noting that the assistance also influenced the form of sentence imposed.
- Under section 10A of the Crimes (Sentencing Procedure) Act, a court may record a conviction for a less serious ancillary offence and impose no further penalty, leaving the principal sentence to address the overall criminality.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 11, 12, 166 (certificate provision)
Cases:
- No specific cases were cited in the judgment text, though the decision refers generally to Court of Criminal Appeal authority on sentencing for drug trafficking to a substantial degree.