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District Court 20 May 2016

R v Mehmed

[2016] NSWDC 329

Drugs
CRIMINAL LAW SENTENCE DRUG SUPPLY REHABILITATION AFTER S11 REMAND

Citation: R v Mehmed [2016] NSWDC 329
Court: District Court of New South Wales
Date: 20 May 2016
Judge: Berman SC DCJ

Background

The offender was an 18-year-old man who came to police attention after driving through a stop sign. During the subsequent search, he admitted to carrying 13.9 grams of methylamphetamine (ice). Police also found a loose SIM card containing messages consistent with drug supply.

The offender pleaded guilty to supply of a prohibited drug on the basis that he possessed the ice for the purpose of supply. He acknowledged funding his own drug addiction through supply, a pattern the court treated as relevant to the prospects of rehabilitation.

Approximately 11 months earlier, the court had adjourned the matter under section 11 of the Crimes (Sentencing Procedure) Act, giving the offender an explicit opportunity to demonstrate rehabilitation before sentence was finalised. The current proceedings concerned what sentence should now be imposed.

  • Whether the offender had demonstrated sufficient rehabilitation to justify a non-custodial or non-fulltime custodial outcome
  • Whether the offender was trafficking to a "substantial degree," which would ordinarily require a fulltime custodial sentence absent exceptional circumstances
  • What form of sentence was appropriate, balancing general deterrence, the offender's youth, his rehabilitation, and the objective seriousness of the offence

Decision

The court was satisfied that the offender had demonstrated, not merely promised, substantial rehabilitation. He had completed six months at a residential rehabilitation facility, was living with his family again (having previously lost their support), and had objective urinalysis evidence confirming he no longer used drugs. The court treated the removal of the drug dependency as removing the primary motivation for supply, making future reoffending significantly less likely.

The court declined to find that the offender was trafficking to a substantial degree. The statement of facts did not establish whether the three downloaded messages came from three separate customers or just one, and there was no drug paraphernalia such as bags or scales. Without that finding, the threshold requiring fulltime custody absent exceptional circumstances did not apply.

The court rejected both a section 9 good behaviour bond and a section 12 suspended sentence as insufficient, emphasising that general deterrence required a sentence with genuine punitive content. The offender received a 25 per cent discount for an early guilty plea, and his youth as a barely-adult offender at age 18 was taken into account as a mitigating factor.

Having determined a sentence of 18 months imprisonment, and being satisfied it fell within the two-year threshold, the court resolved to refer the offender for assessment for an Intensive Corrections Order. The matter was adjourned to allow that assessment to be completed.

Orders Made

• Sentence of 18 months to be served by means of an Intensive Corrections Order (ICO)
• Offender to be referred for assessment as to suitability to serve sentence by means of ICO
• Matter adjourned to Friday 8 July 2016 at 2pm for final determination

The court indicated it proposed to impose a sentence of 18 months imprisonment to be served by way of an Intensive Corrections Order, subject to the offender being assessed as suitable. The matter was adjourned to 8 July 2016 for finalisation.

Key Takeaways

  • A section 11 adjournment under the Crimes (Sentencing Procedure) Act can provide an offender with the opportunity to demonstrate rehabilitation before sentence is passed, and objectively evidenced rehabilitation (such as clean urinalysis results) carries significant weight at sentencing.
  • The District Court declined to find trafficking to a "substantial degree" where the prosecution's statement of facts was ambiguous and there was an absence of drug paraphernalia, illustrating that this finding requires clear evidentiary support.
  • General deterrence retained importance even where personal deterrence was diminished, and the court held that a sentence with punitive content was necessary for drug supply offences despite the offender's rehabilitation.
  • Youth at the time of offending (barely 18) operates as a mitigating factor, with the court noting that markedly different sentencing principles would have applied had the offender been sentenced as a child.
  • An Intensive Corrections Order was treated as capable of satisfying both the punitive and deterrent purposes of sentencing in circumstances where fulltime custody was not warranted, avoiding disruption to a demonstrated rehabilitation trajectory.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), sections 9, 11, and 12

Cases cited: None stated in the judgment.