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District Court 12 February 2016

R v Jackson

[2016] NSWDC 134

Drugs
CRIMINAL LAW SENTENCE DRUG SUPPLY

Citation: R v Jackson [2016] NSWDC 134
Court: District Court of New South Wales
Date: 12 February 2016
Judge: Berman SC DCJ

Background

The offender was stopped at a random breath-testing operation and found to be over the zero alcohol limit applicable to his provisional licence. A search of his person uncovered six small zip-lock bags and $735 in cash. When police asked whether there were any illegal substances in his vehicle, the offender volunteered that they would find pills on the floor of the car.

Police searched the vehicle and found 42 small green tablets (ecstasy) inside an M&Ms container, along with several re-sealable bags, alcohol wipes, and 15 syringes in a brown paper bag. The offender told police he had sold the pills for $20 each that evening, though he later admitted in evidence that this account was incomplete. He had purchased 60 pills for $1,000 and, the court found, intended to sell the remainder for profit.

The offender appeared before the District Court for sentencing on drug supply offences. He was 21 years old, had no prior criminal history, had completed a carpentry apprenticeship, and received strong character references from family and friends. However, the court found that he had been dishonest with police, the pre-sentence report author, and the court itself about the extent of his dealing activities.

  • Whether the offender was trafficking to a substantial degree, which under Court of Criminal Appeal authority would ordinarily require full-time imprisonment
  • Whether exceptional circumstances existed to justify a non-custodial or non-full-time custodial sentence
  • Whether the introduction of intensive corrections orders (ICOs) as a sentencing option affects the established rule that substantial drug traffickers must receive full-time imprisonment
  • Whether a total sentence of two years or less was appropriate, which would open the door to an ICO or suspended sentence

Decision

The court had no hesitation finding that the offender was trafficking to a substantial degree. The purchase of 60 pills for $1,000, the presence of multiple re-sealable bags consistent with individual resale, the cash found on his person, and his own admission that he sold pills for profit all pointed firmly in that direction. The court rejected the offender's claim that he intended to consume a substantial portion of the pills personally.

Berman SC DCJ was critical of the offender's credibility throughout the proceedings. The offender had lied to the pre-sentence report author, gave incomplete evidence about sales made on the night of his arrest, and the court was satisfied he was not fully honest in his evidence at the sentencing hearing. The court also discounted the remorse expressed, noting it was directed at the consequences for the offender and his family rather than at the harm caused by his conduct.

On the central sentencing question, the court acknowledged the firmly established Court of Criminal Appeal rule that substantial drug trafficking requires full-time imprisonment absent exceptional circumstances. However, Berman SC DCJ identified an unresolved question: whether the subsequent introduction of ICOs as a sentencing option requires that rule to be revisited. The court noted that ICOs represent a significant curtailment of liberty but fell well short of equating them with full-time imprisonment.

The court concluded that a sentence of two years or less was appropriate on the facts, which made an ICO legally available. Weighing the seriousness of the offending against the offender's promising rehabilitation prospects and prior good character, the court found the matter finely balanced. Rather than impose immediate full-time imprisonment, the court continued bail and referred the offender for assessment of his suitability to serve his sentence by way of ICO, adjourning for a final sentencing determination.

Orders Made

  • Bail continued
  • Matter referred for assessment of the offender's suitability to serve a sentence of imprisonment by way of intensive corrections order
  • Matter adjourned part-heard to 29 July 2016 in Sydney

Key Takeaways

  • The District Court confirmed the long-standing Court of Criminal Appeal principle that offenders trafficking drugs to a substantial degree must serve full-time imprisonment, unless exceptional circumstances are established, and such circumstances are to be found sparingly.
  • An unresolved appellate question exists as to whether the introduction of intensive corrections orders requires modification of that rule, given that ICOs were not available when the rule was first formulated. Berman SC DCJ flagged this openly but did not resolve it.
  • Dishonesty with police, pre-sentence report authors, and the court itself was treated as a significant factor in the offender's disfavour, affecting both credit for remorse and the weight given to mitigating evidence.
  • Expressions of remorse directed only at personal and family consequences, rather than at the harm caused to others, were given little weight in the sentencing assessment.
  • Where a total sentence of two years or less is appropriate in a substantial drug supply case, sentencing options including ICOs remain legally available, though the court made clear that ICOs are not equivalent to full-time imprisonment in punitive terms.

Legislation and Cases Referenced

Legislation: Not specified in the judgment.

Cases: No specific cases cited by name in the judgment. The court referred generally to Court of Criminal Appeal authority on the full-time imprisonment rule for substantial drug trafficking.