Citation: R v Mostapha Ali [2016] NSWDC 173
Court: District Court of New South Wales
Date: 27 May 2016
Judge(s): Mahony SC DCJ
Background
The offender, a young man aged 19 at the time of the offences, was committed for sentence on two charges of supplying commercial quantities of prohibited drugs arising from events on 18 August 2015 near Sutton, New South Wales. A separate supply offence from 24 July 2015, involving 1.31 grams of methylamphetamine, was taken into account on a Form 1 (a document that allows related charges to be considered at sentencing without separate conviction).
On 18 August 2015, the offender supplied approximately 155 grams of purported methylamphetamine and approximately 215 grams of purported MDMA to a male known to police, receiving $32,000 in payment. Analysis later revealed that the substance sold as methylamphetamine contained no prohibited drug at all, while the 215 grams of MDMA was confirmed as the prohibited drug methylenedioxymethylamphetamine.
The offender had a prior record in both the ACT and New South Wales, including drug-related convictions. He had spent 140 days in pre-sentence custody. The sentencing hearing considered extensive subjective material, including a pre-sentence report, character evidence, and the offender's own testimony about his drug addiction and the circumstances driving his offending.
Legal Issues
- Whether the supply of substances purported to be prohibited drugs, where one substance contained no actual prohibited drug, engaged the deeming provision in s 40 of the Drug Misuse and Trafficking Act 1985 (DMTA)
- Where on the range of objective seriousness the offending fell, given the quantities involved, the absence of actual prohibited drug in one transaction, and the offender's role and motivation
- Whether a sentence of full time imprisonment was warranted, or whether an Intensive Corrections Order (ICO) or suspended sentence was appropriate in the circumstances
- The weight to be given to subjective factors including age, rehabilitation, drug addiction, and time already served
Decision
Issue 1: Application of s 40 DMTA (deemed supply)
The court accepted the Crown's submission that s 40 of the DMTA applied to both transactions, meaning that the substances the offender represented as prohibited drugs were deemed to have been supplied as such, regardless of their actual composition. In respect of the 215 grams of MDMA, the quantity exceeded the commercial threshold of 125 grams. In respect of the 155 grams of purported methylamphetamine, the amount fell below the commercial quantity of 250 grams (at [33]).
Issue 2: Objective seriousness
The court accepted that purity is one relevant factor when assessing where offending sits on the range of seriousness, and that the offender's role and level of participation is more important than quantity alone (at [33]). The supply occurred on one occasion, the offender had no genuine prospect of obtaining the drugs, and the transaction was driven by pressure to pay drug debts arising from his own addiction (at [34]). The court placed the objective seriousness below the mid-range, though not at the lower end, given the quantities and the $32,000 involved (at [35]).
Issue 3: Sentence
The court held that no penalty other than imprisonment was appropriate (at [43]). However, having regard to the early plea of guilty (attracting a 25% discount), the offender's youth, rehabilitation progress, stable employment, strong family support, and 140 days already served in custody, the court was persuaded that a sentence of not more than two years was warranted. The court referred the offender for assessment for an Intensive Corrections Order under s 7 of the Crimes (Sentencing Procedure) Act 1999 as a possible alternative to full time custody (at [43]).
Issue 4: Subjective factors
The court accepted the offender's remorse and the evidence from family members as genuine, and found that significant progress had been made in rehabilitation (at [37]). The offender was in full time employment, subject to regular urinalysis with no positive results, and living in a stable environment with family (at [21]-[23]). The court noted that both general and specific deterrence remained relevant considerations in drug supply matters, but that the offender's insight and rehabilitation steps were material to specific deterrence (at [38]).
Orders Made
- The offender was referred for assessment for suitability for an Intensive Corrections Order (ICO)
- The sentence was indicated to be for a period of not more than 2 years imprisonment
- The matter was adjourned to 18 August 2016 at Sydney District Court for consideration of the assessment report and for sentencing
- Pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999, the offender was to serve the sentence by way of ICO for a period of 18 months, subject to standard conditions
- The offender was required to report to Community Corrections at Young within 7 days and to reside at a specified address
- Pursuant to s 29 of the Confiscation of Proceeds of Crime Act 1989, the offender was ordered to pay $32,000 to the State
- The prohibited drugs were ordered to be destroyed by NSW Police
- The Form 1 offence was certified and taken into account on sentence
Key Takeaways
- Under s 40 of the Drug Misuse and Trafficking Act 1985, a person who represents a substance as a prohibited drug and supplies it is deemed to have supplied that drug, even where analysis reveals no actual prohibited drug is present in the substance.
- The District Court confirmed that quantity alone is not the principal determinant of objective seriousness in drug supply sentencing; the offender's role, level of participation, and the purity of the drugs are also relevant considerations (at [33]).
- Where an offender's involvement in drug supply is driven by addiction and pressure to pay drug debts, and the supply occurs on a single occasion with no genuine capacity to obtain the drugs, a court may place the objective seriousness below the mid-range even where commercial quantities are involved (at [34]-[35]).
- Judicial Commission statistics, though of limited utility, may be considered by a sentencing court to confirm that non-custodial or alternative options exist in appropriate cases involving drug supply, particularly for young offenders with early pleas of guilty and no relevant prior history (at [39]).
- Consistent with EF v R [2015] NSWCCA 36, the court recognised that full time custody is the general expectation for substantial drug supply, but that failure to consider alternatives may cause injustice in individual cases, particularly where strong rehabilitation and subjective factors are present (at [40]-[41]).
Legislation and Cases Referenced
Legislation
- Confiscation of Proceeds of Crime Act 1989
- Crimes (Sentencing Procedure) Act 1999
- Drug Misuse and Trafficking Act 1985
Cases
- EF v R [2015] NSWCCA 36
- R v Blair (2005) 152 ACrimR 462
- R v Gu [2006] NSWCCA 104
- R v Wong [1999] NSWCCA 420