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District Court 5 August 2016

R v Selena Jahnsen

[2016] NSWDC 158

Drugs
DEEMED SUPPLY OF METHYLAMPHETAMINE FULL TIME CUSTODIAL SENTENCE

Citation: R v Selena Jahnsen [2016] NSWDC 158
Court: District Court of New South Wales
Date: 5 August 2016 (amended 25 October 2016)
Judge: Mahony SC DCJ

Background

The offender pleaded guilty at the earliest opportunity to one count of deemed supply of methylamphetamine under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The charge arose after police executed a search warrant at her home on 27 November 2015 and discovered 18.37 grams of methylamphetamine of very high purity, along with digital scales, a large quantity of resealable bags, rubber gloves with fingers removed, syringes, glass pipes, a tick list, and $3,800 in a locked box. Text messages on her phone indicated drug supply activity. The offender also asked the court to take into account two additional matters on a Form 1: a separate supply of 3.4 grams of methylamphetamine earlier the same day, and possession of goods suspected to be stolen (the $3,800).

The offender was 44 years old at sentence. She had a limited prior record, a history of illicit drug use since 2001, and had experienced significant personal trauma, including the death of infant twin boys in 2002. A pre-sentence report assessed her as medium to low risk of reoffending and suitable for community service. She had apparently ceased drug use since the offending.

The maximum penalty for the offence was 15 years imprisonment and/or 2,000 penalty units. No standard non-parole period applied.

  • Whether the objective seriousness of the offending required a full-time custodial sentence, absent truly exceptional circumstances
  • Whether the totality of the offender's subjective circumstances amounted to exceptional circumstances displacing the general principle that substantial involvement in drug supply warrants full-time imprisonment
  • Whether the court retained a discretion, consistent with EF v R [2015] NSWCCA 36, to consider an Intensive Correction Order (ICO) as an alternative to full-time imprisonment even in drug supply cases
  • How the surrounding conduct (scales, packaging, tick list, mobile phone messages, money) informed the degree of seriousness of a charge brought under the deeming provision

Decision

His Honour accepted the Crown's submission that the offending involved drug trafficking to a substantial degree. The quantity and purity of the methylamphetamine, the packaging paraphernalia, the tick list, the mobile phone evidence, and the undisclosed cash collectively demonstrated organised supply activity beyond mere personal use. The Form 1 supply offence, committed earlier the same day, added to the overall picture of serious offending.

The court acknowledged meaningful subjective considerations in the offender's favour: an early guilty plea attracting a 25% utilitarian discount, genuine remorse, demonstrated cessation of drug use, care responsibilities for elderly parents and a neighbour, and the personal tragedy underlying her drug use. However, applying R v Cacciola and the line of Court of Criminal Appeal authority, His Honour found these factors did not cumulatively constitute exceptional circumstances sufficient to displace the default position that full-time custody is warranted for substantial drug supply.

On the contested point about EF v R, His Honour rejected the Crown's argument that this decision was contrary to established authority and should not be followed. His Honour accepted that EF v R confirmed a residual judicial discretion to consider an ICO as an alternative to full-time imprisonment where the interests of justice so require. The court was not precluded from exploring that option simply because the offence was a serious drug supply matter.

Satisfied that the appropriate custodial term would be two years or less, His Honour referred the offender for an ICO suitability assessment. Following that assessment, and the offender's execution of the required undertaking, an 18-month ICO was ultimately imposed.

Orders Made

  • The offender was referred for assessment of suitability for an Intensive Correction Order under s 7 of the Crimes (Sentencing Procedure) Act 1999
  • Following a favourable assessment, an Intensive Correction Order for a period of 18 months was imposed, with standard conditions and a requirement to report to Community Corrections at Taree within 7 days
  • Forfeiture of $3,800 to the State of New South Wales under s 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)
  • Destruction of all drugs and drug paraphernalia the subject of the offences
  • A s 166 charge was withdrawn and dismissed

Key Takeaways

  • The District Court confirmed that substantial involvement in drug supply ordinarily requires full-time custody, and that a combination of positive subjective factors (plea, remorse, rehabilitation) does not constitute "exceptional circumstances" unless the aggregate places the case significantly outside the norm.
  • Under the deeming provision in s 25(1) of the Drug Misuse and Trafficking Act 1985, surrounding conduct such as scales, individual packaging, tick lists, and mobile phone communications can support a finding of trafficking to a substantial degree, even where the formal charge rests on possession alone.
  • Rejecting the Crown's position, the court applied EF v R [2015] NSWCCA 36 to confirm that sentencing courts retain a discretion to consider an ICO in drug supply cases, and that failure to turn the mind to available alternatives may produce injustice.
  • Where a sentencing judge concludes that an appropriate custodial term would be two years or less, s 7 of the Crimes (Sentencing Procedure) Act 1999 permits referral for an ICO assessment, and this pathway remains available in drug supply proceedings.
  • An early guilty plea continued to attract a 25% utilitarian discount, consistent with established sentencing practice in New South Wales.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 7, 21A
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 219
- Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW)

Cases
- EF v R [2015] NSWCCA 36
- PAK v R [2015] NSWCCA 45
- R v Cacciola (1998) 104 A Crim R 178
- R v Clarke (NSWCCA, unreported, 15 March 1990)
- R v Gu [2006] NSWCCA 104
- R v Dodd (1991) 57 A Crim R 349
- R v Wong [1999] NSWCCA 420
- Youssef v R [2014] NSWCCA 285