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District Court 6 May 2016

R v Smith

[2016] NSWDC 135

Drugs
CRIMINAL LAW SENTENCE SUPPLY LARGE COMMERCIAL QUANTITY 25C NBOME

Citation: R v Smith [2016] NSWDC 135
Court: District Court of NSW
Date: 6 May 2016
Judge: Berman SC DCJ

Background

The offender pleaded guilty to supplying a large commercial quantity of a prohibited drug. He had approximately 40 pills in his possession for the purposes of supply, believing them to be ecstasy (MDMA). They were not. The pills contained 25C-NBOMe, a synthetic hallucinogenic substance with a large commercial quantity threshold of just two grams. The offender held more than nine grams, placing him well above that threshold.

The offender's ignorance of the drug's true nature became dramatically apparent on 9 May 2015. After consuming some of the pills for the first time, he suffered severe hallucinogenic effects and engaged in a series of erratic and violent acts. He ran at a passing motorist's car, climbed on her bonnet, screamed at her, smashed her windscreen, kicked her vehicle, assaulted two women who had stopped to help him, and spat at a police officer. These incidents formed the basis of additional matters dealt with on a Form 1 (a document listing related offences taken into account at sentencing without separate conviction).

Police searched the offender's vehicle and found the pills, a single MDMA tablet, and text messages indicating he had been supplying drugs for approximately four months before his arrest. The offender admitted he had begun dealing to make quick money after losing a job, and told the court he had become involved with the wrong crowd.

  • What was the appropriate objective gravity of the offence, given the offender's genuine belief that the drugs were MDMA rather than 25C-NBOMe?
  • Whether a full-time custodial sentence was required for an offender found to be trafficking to a substantial degree, or whether exceptional circumstances justified an alternative.
  • Whether an intensive corrections order (a supervised sentence served in the community) was appropriate in the circumstances.

Decision

Berman SC DCJ characterised the offending as sitting at the lower end of the range for large commercial supply offences. The maximum penalty for such an offence is life imprisonment with a standard non-parole period of 15 years. His Honour found that the offender's complete ignorance of the drug's true identity was a significant mitigating factor in assessing objective seriousness, and explained why the standard non-parole period would not be applied.

On the question of a full-time custodial sentence, His Honour acknowledged the general principle that offenders trafficking to a substantial degree should expect full-time imprisonment absent exceptional circumstances. However, the court identified two relevant considerations: the offender's genuine and demonstrated rehabilitation, and the availability of an intensive corrections order as a sentencing option that did not exist when the Court of Criminal Appeal established that principle.

The offender's rehabilitation was supported by clean urinalysis results since arrest, consistent accounts to a psychiatrist, psychologist, and probation officer, evidence from his mother of a marked change in character, ongoing stable employment with an employer aware of the offending, and a stable personal relationship. His Honour also noted a history of depression and a prior suicide attempt, finding that full-time custody would weigh particularly heavily on him.

His Honour was satisfied that a sentence of two years' imprisonment or less was appropriate, and that an intensive corrections order may well be suitable. The matter was adjourned for an assessment of the offender's suitability to serve his sentence by way of an intensive corrections order.

Orders Made

  • The court directed that an assessment be conducted as to the offender's suitability to serve a sentence of imprisonment by means of an intensive corrections order.
  • The matter was adjourned part-heard to Tuesday 2 August 2016 at 9:30am.

Key Takeaways

  • Where an offender genuinely did not know the true identity of the drug being supplied, that ignorance is a relevant and significant mitigating factor when assessing the objective seriousness of a large commercial supply offence.
  • The large commercial quantity threshold for 25C-NBOMe is two grams, meaning a relatively small number of pills can satisfy the threshold for this serious offence category carrying a maximum of life imprisonment.
  • A general principle exists that offenders trafficking to a substantial degree should serve full-time custody absent exceptional circumstances, but the District Court treated demonstrated rehabilitation and the availability of newer sentencing options as relevant to departing from that approach.
  • Significant post-offence rehabilitation, including verified abstinence, stable employment, and changed personal circumstances, carries real weight in sentencing decisions at the lower end of serious drug supply offences.
  • Matters dealt with on a Form 1, such as property damage, common assault, and drug possession, are taken into account in the overall sentence without resulting in separate convictions.

Legislation and Cases Referenced

Legislation:
- No specific legislation was cited in the judgment, though the offence relates to the supply of a large commercial quantity of a prohibited drug under NSW drug legislation (the Drug Misuse and Trafficking Act 1985 (NSW) governs such offences in NSW).

Cases:
- No cases were cited by name in the judgment, though His Honour referred to principles established by the Court of Criminal Appeal regarding full-time custody for substantial drug traffickers.