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District Court 18 October 2016

R v Davis

[2016] NSWDC 382

Drugs
CRIME SENTENCE DEEMED SUPPLY OF 2.5 GRAMS OF 3,4 MDMA (ECSTASY) DRUG USE AT DANCE PARTIES ONLY

Citation: R v Davis [2016] NSWDC 382
Court: District Court of New South Wales
Date: 18 October 2016
Judge(s): Neilson DCJ

Background

The offender, a 25-year-old IT professional of prior good character, was detected by police sniffer dogs carrying 16 capsules of ecstasy (2.5 grams of 3,4-MDMA at 77% purity) concealed in his clothing as he attempted to enter a dance party at the Sydney Showground, Sydney Olympic Park, on 28 July 2015.

He was charged with supply of a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act 1985. The charge arose by operation of the deemed supply provisions: because the quantity exceeded the trafficable amount, the law placed the onus on the offender to prove on the balance of probabilities that the drugs were for his own personal use rather than for supply.

The offender pleaded not guilty and gave evidence at trial that he took ecstasy only at dance parties and that the capsules were for personal consumption. The jury rejected that defence and returned a guilty verdict on the morning of sentencing.

  • Whether the offender had discharged the onus of proving, on the balance of probabilities, that the drugs were for personal use rather than supply (resolved at trial)
  • What sentence was appropriate for a first offender convicted after a not guilty plea for supply of ecstasy below the commercial quantity, having regard to the statistical range of sentences and the offender's personal circumstances

Decision

Neilson DCJ accepted the jury's verdict and proceeded to sentence on the basis that the offender intended to supply at least some of the 16 capsules to others at the dance party. His Honour noted that while the quantity was twice the trafficable amount, it remained well below the commercial quantity of 125 grams, placing the offending at the lower end of the supply range.

The Court reviewed Judicial Commission statistics, which showed that for offenders with no prior convictions aged between 21 and 25 years convicted of supplying ecstasy below the commercial quantity, the median outcome was a suspended sentence of 18 months. Fifteen per cent of offenders received full-time imprisonment, with a median term of 24 months and a 12-month non-parole period. No statistics were available for offenders who had pleaded not guilty, as all comparable data related to guilty pleas.

His Honour declined to impose a s 10 order (a conviction recorded but no further penalty), reasoning that such an outcome would have been open to argument had the offender pleaded guilty, but was entirely inappropriate following a not guilty plea and jury conviction. A community service order was also considered but rejected, given that the offender worked up to 12 hours per day and six days per week, and his Honour was concerned about exposing a young man without a criminal background to serious offenders in a community service setting.

The sentence imposed combined a three-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 and a $2,000 fine. The Crown had not sought full-time custody; it sought a lengthy s 9 bond or, in the alternative, a community service order.

Orders Made

  • Three-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999, commencing 18 October 2016, with conditions requiring the offender to:
  • Appear before the Court if called upon at any time
  • Be of good behaviour throughout the bond period
  • Reside at a specified NSW address
  • Notify the Court Registrar by prepaid registered post of any change of residential address
  • Fine of $2,000, payable within one month

Key Takeaways

  • Under the deemed supply provisions of the Drug Misuse and Trafficking Act 1985, once a quantity exceeds the trafficable threshold, the onus shifts to the accused to prove on the balance of probabilities that the drugs were for personal use, not supply.
  • A conviction after a contested jury trial significantly narrows the sentencing options available: the District Court expressly held that a s 10 order, which might otherwise have been arguable for a first offender, was wholly inappropriate where the offender had put the Crown to proof and been convicted.
  • Judicial Commission statistics provided the sentencing framework, showing that for first offenders in this age group, outcomes ranged from good behaviour bonds to suspended sentences, with full-time imprisonment reserved for a minority of cases.
  • Personal circumstances, including stable employment, good character, and the absence of a criminal milieu, were relevant mitigating factors, but did not shield the offender from conviction or from a meaningful penalty reflecting the jury's verdict.
  • Practical considerations, such as the offender's demanding work schedule, factored into the rejection of a community service order, illustrating that sentencing courts assess the suitability of each sentencing option against the individual's actual circumstances.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) (offence of supply of prohibited drug)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bond), s 10 (dismissal without conviction)

Cases
No cases were cited in the judgment.