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District Court 18 November 2016

R v Lineham (No 2)

[2016] NSWDC 311

Assault & violenceDrugs
SENTENCE DEEMED SUPPLY OF ECSTASY DEEMED SUPPLY OF COCAINE EXTRA CURIAL PUNISHMENT

Citation: R v Lineham (No 2) [2016] NSWDC 311
Court: District Court of New South Wales
Date: 18 November 2016
Judge: Hatzistergos DCJ

Background

The offender pleaded guilty to two counts of deemed supply of prohibited drugs (MDMA and cocaine) and was found guilty after trial of assaulting a police officer in the execution of her duty, occasioning actual bodily harm. All three offences arose from a single incident on 17 May 2014 in Surry Hills, when the offender fled from uniformed police who had approached him near a vehicle parked unlawfully in a no-stopping zone.

During the ensuing foot pursuit, the offender made physical contact with Sergeant Turner in a manner the court described as a sweeping motion as she attempted to detain him. She fell to the ground and suffered pain and injury. The offender was also found, during the disputed facts hearing, to have had 11.5 grams of cocaine in his possession, placing the cocaine charge within the deemed supply range under the Drug Misuse and Trafficking Act 1985 (NSW).

Sentencing proceeded after separate judgments addressed the trial verdict, a disputed facts hearing on the cocaine quantity, and then the overall sentencing exercise. The central question at sentence was whether the offending, taken together, warranted full-time imprisonment or whether an intensive correction order (ICO) was an available and appropriate alternative.

  • Whether the quantity of cocaine (11.5 grams) properly engaged the deemed supply provisions under the Drug Misuse and Trafficking Act 1985 (NSW)
  • How to assess the objective seriousness of each offence, including the assault of a police officer
  • Whether any extra-curial punishment (harm the offender suffered outside the court process) was relevant to the sentencing exercise
  • Whether the offender's subjective circumstances, including psychological evidence and prior police-related trauma, warranted particular weight
  • Whether an intensive correction order was an available and appropriate sentencing option in lieu of full-time custody, having regard to the nature of the offences and the requirements under the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

Hatzistergos DCJ assessed each offence individually before considering the overall sentencing task. The drug supply offences were treated as falling in the lower-to-mid range of objective seriousness, reflecting that the quantities, while meeting the deemed supply threshold, were not commercial in scale. The assault on Sergeant Turner was treated as more serious in terms of its impact on the officer and the need to protect police acting in the execution of their duties, though the court accepted the physical contact arose in the context of flight rather than a deliberate, targeted attack.

The court accepted that the offender had experienced a prior incident of alleged police mistreatment at age 16, which informed his decision to flee. Psychological evidence was also before the court and was taken into account as part of the offender's subjective circumstances. The court noted that the offender had suffered some form of extra-curial punishment, though the weight given to this factor was addressed in the context of the broader sentencing calculus.

The court acknowledged that, ordinarily, offences of this nature and combination would attract a custodial sentence. However, having regard to the totality of subjective circumstances, the nature of the offending, and the available sentencing options under the 1999 Act, the court determined that an intensive correction order was a sentencing avenue that warranted genuine consideration. Rather than imposing full-time imprisonment immediately, the court directed that the offender be assessed for suitability for an intensive correction order in the community.

Orders Made

  • The offender is directed to report to the office of Community Corrections at Leichhardt within 7 days for assessment of suitability for intensive correction in the community pursuant to s 69(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Key Takeaways

  • An intensive correction order remained a sentencing option in cases involving assault police occasioning actual bodily harm and deemed drug supply, provided the court undertook the assessment process mandated under the Crimes (Sentencing Procedure) Act 1999 (NSW) before imposing or rejecting that alternative.
  • The District Court treated the physical contact with the police officer as satisfying the elements of assault, even where the contact arose from an act of flight rather than a deliberate confrontational attack, though this characterisation bore on the objective seriousness of the offence.
  • Extra-curial punishment was considered as a relevant factor at sentence, consistent with the established approach in NSW that hardship suffered by an offender outside the court process can, in appropriate cases, bear upon the sentencing outcome.
  • Where disputed facts go to the quantity of a drug and thereby affect the applicable supply threshold, a separate disputed facts hearing is required, with the Crown bearing the burden of proof on matters that aggravate the sentence beyond the facts implicit in the plea.
  • Psychological evidence and an offender's personal history, including prior adverse experiences with authorities, formed part of the subjective circumstances weighed against the objective gravity of the offending.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 21A, 24(a), 53A(1), 54B, 67(1), 69(1)
- Crimes Act 1900 (NSW), s 60(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3(1), 25, 29(a), 32(1)

Cases
- R v Lineham [2016] NSWDC 247
- Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290
- Forti v R [2016] NSWCCA 127
- EF v R [2015] NSWCCA 36
- R v Ball [2013] NSWCCA 126
- Bonwick v R [2010] NSWCCA 177
- Kenny v R [2010] NSWCCA 6
- Page v R (2008) 49 MVR 407; [2008] NSWCC 26
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- R v Barber [2004] NSWCCA 153
- R v Cheikh; R v Hoete [2004] NSWCCA 448
- R v Shi [2004] NSWCCA 135
- R v Daetz; R v Wilson [2003] NSWCCA 216
- R v Jouayde [2003] NSWCCA 240
- Douar v R [2005] NSWCCA 455
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 515
- R v Edigarov (2002) 125 A Crim R 551; [2001] NSWCCA 436
- R v JCW (2000) 112 A Crim 466; [2000] NSWCCA 209
- R v De Simoni (1981) 147 CLR 383
- R v Leroy [1984] 2 NSWLR 441