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District Court 14 July 2016

R v Khoshaba

[2016] NSWDC 150

Drugs
CRIMINAL LAW SENTENCE DRUG SUPPLY MDMA GOOD PROSPECTS OF REHABILITATION

Citation: R v Khoshaba [2016] NSWDC 150
Court: District Court of NSW
Date: 14 July 2016
Judge(s): Berman SC DCJ

Background

In the early hours of 1 August 2015, police stopped a vehicle in Surry Hills and detected the smell of cannabis. A search of the car uncovered 47 capsules of MDMA and a small quantity of cannabis. One of the three occupants, a 19-year-old man who had turned 19 just days before, told police the drugs were his and that he intended to use some and supply the rest to friends at his birthday celebrations that evening.

The offender pleaded guilty at the earliest opportunity to a charge of supplying a prohibited drug (MDMA). The cannabis possession matter was dealt with on a Form 1 (a procedural mechanism allowing a court to take additional offences into account when sentencing without recording separate convictions for each). At sentencing, the offender gave sworn evidence and was cross-examined by the Crown.

The central question for the court was what sentence was appropriate given the circumstances of the offending, the offender's background, and his prospects of rehabilitation.

  • Whether the non-commercial, one-off nature of the supply and the offender's youth and rehabilitation prospects justified a departure from a custodial sentence
  • Whether a finding under section 10(1)(b) of the Crimes (Sentencing Procedure) Act (dismissal of a charge without proceeding to conviction, on condition of a good behaviour bond) was available for a drug supply offence of this character
  • How to weigh the principle of consistency in sentencing, including the relevance of a single comparable Court of Criminal Appeal decision

Decision

Berman SC DCJ characterised the offending as serious, noting that drug supply causes real harm to users, families, and the broader community, and that those trafficking to a substantial degree ordinarily face full-time custody unless exceptional circumstances exist. However, his Honour found this offender was not trafficking to a substantial degree, which meant the exceptional circumstances threshold for avoiding full-time custody did not apply.

The court placed significant weight on several mitigating features. The supply was non-commercial, intended only for friends at a birthday celebration, and appeared to be a single isolated incident. The offender was barely 19 at the time, and his Honour observed that youth diminishes moral culpability. Since his arrest, the offender had ceased drug use, ended his associations with the relevant group of friends, and was progressing through a carpentry apprenticeship. His Honour found his prospects of rehabilitation were very good.

The court considered a comparable Court of Criminal Appeal decision, R v Mauger [2012] NSWCCA 51, in which a Crown appeal against a section 10 order for a similar MDMA supply offence was dismissed. Berman SC DCJ acknowledged that a single case does not establish a sentencing range, but invoked the principle from Lowe v The Queen that sentencing inconsistency can constitute a badge of unfairness, and treated Mauger as a meaningful reference point.

His Honour frankly acknowledged that the sentence imposed would do little to deter others, but concluded that a section 10 good behaviour bond was the most appropriate outcome in this particular case, describing it as one of a very rare category of drug supply matters where such an order was justified.

Orders Made

  • The court found the drug supply offence proved without proceeding to conviction (section 10 order), also taking the cannabis possession into account on the Form 1
  • The offender was released on a good behaviour bond for two years, subject to the following conditions:
  • No criminal offences of any kind
  • No use of illegal drugs
  • Supervision by the Probation and Parole Service for as long as considered appropriate
  • Urinalysis on at least three occasions within the first six months of the bond, with results to be provided to the judge's associate
  • Appearance before the court if called upon at any time
  • Notification to the court Registrar of any change of residential address

Key Takeaways

  • A section 10 good behaviour bond for a drug supply offence is available in principle but remains rare; the District Court described this as one of a very small category of cases where such an order was justified.
  • Non-commercial supply intended solely for friends, with no profit motive and no broader dealing, is a significant factor in reducing the objective gravity of a supply offence.
  • Youth at the time of offending carries genuine weight in sentencing: the court applied the principle that a 19-year-old typically bears less moral culpability than an older offender for equivalent conduct.
  • Under Lowe v The Queen, sentencing courts are entitled to have regard to a single comparable appellate decision to avoid unwarranted inconsistency, even where that case cannot itself establish a sentencing range.
  • Demonstrated post-arrest rehabilitation, including cessation of drug use and changed associations, can materially influence the sentencing outcome where supported by credible evidence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act (NSW), section 10(1)(b)

Cases
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- R v Mauger [2012] NSWCCA 51