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District Court 15 December 2016

R v Robinson

[2016] NSWDC 400

Drugs
CRIMINAL LAW SENTENCE DRUG SUPPLY

Citation: R v Robinson [2016] NSWDC 400
Court: District Court of New South Wales
Date: 15 December 2016
Judge(s): Berman SC DCJ

Background

The offender, a young man with a prior history of drug possession and driving offences, attended the Listen Out Music Festival at Centennial Park on 3 October 2015. He had pooled money with a group of 10 to 15 friends and took on the role of obtaining and carrying 39 MDMA capsules into the festival for distribution among them.

Police operating drug detection dogs at the festival intercepted the offender at the entry. He was cooperative and voluntarily produced a condom containing the capsules, which he had concealed in his underpants.

The offender pleaded guilty at the earliest opportunity. When the matter first came before the court earlier in 2016, he indicated he had ceased using drugs and was undergoing rehabilitation. The sentencing judge adjourned the matter under section 11 of the Crimes (Sentencing Procedure) Act to allow him the opportunity to demonstrate that rehabilitation was genuine.

  • What weight should be given to rehabilitation and personal mitigation when sentencing for drug supply?
  • Whether general deterrence required a custodial sentence notwithstanding the offender's rehabilitation.
  • Whether a non-custodial bond under section 9 or a suspended sentence under section 12 of the Crimes (Sentencing Procedure) Act was appropriate, or whether some form of custody was required.
  • Whether an Intensive Corrections Order (ICO) was a suitable form of custodial sentence in the circumstances.

Decision

The sentencing judge accepted that the offender had genuinely rehabilitated. By the time of sentencing, he had ceased drug use, secured full-time employment, maintained family support, and continued attending the Salvation Army First Program. He received a 25 percent discount on sentence for his early guilty plea.

Despite that rehabilitation, the court held that general deterrence demanded a meaningful custodial component. Drug supply at music festivals is a prevalent offence, and the court emphasised that supplying MDMA to friends, even without profit, remains a serious crime carrying a maximum penalty of 15 years imprisonment. A bond under section 9 or a suspended sentence under section 12 were both rejected as insufficient to reflect that seriousness.

The court distinguished the offence from more serious supply cases, noting there was no evidence of trafficking for profit, no use of mobile phones to supply strangers, and no pattern of dealing behaviour. The offending fell toward the lower end of the supply spectrum, but it still warranted real punishment.

The court was satisfied a sentence of two years or less was appropriate and that an Intensive Corrections Order was the suitable mechanism. The matter was adjourned to 3 March 2017 for an ICO assessment by Corrective Services, with the outcome of that assessment to determine whether the offender would serve the sentence in the community or face full-time custody.

Orders Made

• Matter adjourned to Friday 3 March 2017
• Corrective Services to conduct assessment for potential Intensive Corrections Order

Key Takeaways

  • Even where an offender has genuinely rehabilitated before sentencing, general deterrence can require a custodial sentence for drug supply offences, particularly given their prevalence at music festivals.
  • The District Court rejected both a section 9 good behaviour bond and a section 12 suspended sentence as inadequate responses to supply offences, on the basis that neither constituted sufficiently real punishment.
  • Supply to friends from a pooled arrangement, without profit and without evidence of broader dealing, places an offence toward the lower end of the supply spectrum, but does not remove it from the range warranting custody.
  • An Intensive Corrections Order was identified as a potential sentencing mechanism capable of satisfying both the need for real punishment and the preference to avoid full-time imprisonment for a genuinely rehabilitated offender.
  • The Court of Criminal Appeal's decision in Chiang v R [2016] NSWCCA 45, involving broadly comparable facts, was noted as authority for the proposition that nothing less than full-time custody may sometimes be appropriate, though the District Court declined to go that far in this case.

Legislation and Cases Referenced

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

Cases
- Chiang v R [2016] NSWCCA 45