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District Court 17 November 2016

R v Margaronis

[2016] NSWDC 404

Drugs
CRIMINAL LAW SENTENCE DRUG SUPPLY

Citation: R v Margaronis [2016] NSWDC 404
Court: District Court of New South Wales
Date: 17 November 2016
Judge(s): Berman SC DCJ

Background

The offender was a former PDHPE teacher who had transitioned to running a personal training business. Following a series of personal losses, including the death of his mother from Parkinson's disease and the death of his brother from heroin-related complications, he fell into depression and began using cocaine and MDMA supplied by an acquaintance.

Police observed the offender in a vehicle near a hotel in Bondi on 4 December 2015. A search of his person revealed two mobile phones, $1,625 in cash, six resealable bags containing 4.46 grams of cocaine, and 22 capsules containing 4.5 grams of MDMA.

The offender gave sworn evidence that he was travelling to a party and intended to use some of the drugs himself while supplying the remainder to friends at no charge, as part of a reciprocal arrangement common in his social circle at the time. The Crown put to him that the supply was for cash, but the court accepted his account. He pleaded guilty at the earliest opportunity to supplying the MDMA, with the cocaine supply taken into account on a schedule. A proceeds-of-crime dealing offence relating to the cash was also before the court.

  • What sentence was appropriate for a small-scale, social drug supply by a first-time offender of otherwise good character?
  • Whether the offender's personal circumstances, including grief, depression, and subsequent rehabilitation, warranted a non-custodial or non-full-time-custodial outcome.
  • Whether the offender's drug supply reached the threshold of "trafficking to a substantial degree," which would have required exceptional circumstances to be shown before a non-custodial sentence could be considered.

Decision

Berman SC DCJ accepted the offender's sworn account that the drug supply was social and reciprocal rather than for commercial gain. The absence of incriminating material on either mobile phone, and the lack of drug-dealing paraphernalia such as scales or ledgers, supported that finding. The court was careful to note that accepting this characterisation did not diminish the seriousness of the conduct.

The court found that the supply did not constitute trafficking to a substantial degree, meaning the offender was not required to demonstrate exceptional circumstances to be considered for a non-custodial sentence. However, the court considered that some form of custodial sentence remained necessary to reflect the harm caused by drug dealing, even at this level.

In mitigation, the court placed significant weight on the offender's underlying good character, his candid evidence, his genuine remorse, and the concrete evidence of rehabilitation. Eleven urinalysis reports confirmed he had ceased drug use since his arrest. His guilty plea at the earliest opportunity attracted a 25 per cent discount on the sentence that would otherwise have been imposed.

The court declined to impose full-time imprisonment, finding that the sentence length was such that an intensive corrections order (ICO) was an available alternative. The matter was adjourned for a Corrective Services assessment of the offender's suitability to serve his sentence by way of an ICO.

Orders Made

  • The offender was referred for assessment of his suitability to serve his sentence by way of an intensive corrections order.
  • The matter was adjourned to 27 January 2017 for final sentencing.

Key Takeaways

  • The District Court accepted that social, reciprocal drug supply without commercial indicia could be sentenced on a factual basis more favourable to the offender, provided that characterisation was supported by the evidence.
  • Where drug supply does not amount to "trafficking to a substantial degree," the offender is not required to demonstrate exceptional circumstances before a non-custodial sentence may be considered under the relevant legislative framework.
  • Concrete evidence of rehabilitation, including verified urinalysis results and credible sworn evidence, carries meaningful weight in sentencing for drug supply offences.
  • A guilty plea at the first available opportunity attracted a 25 per cent reduction to the sentence that would otherwise have been imposed, reflecting its utilitarian benefit to the criminal justice system.
  • An otherwise upright character and a demonstrated capacity for reform did not eliminate the need for a custodial sentence entirely, reflecting the court's view that drug dealing causes harm to the community regardless of the offender's personal circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 (non-conviction order, applied in earlier Local Court matter involving steroids)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 166 certificate (for the proceeds-of-crime dealing offence taken into account on sentence)

Cases cited: None stated in the judgment.