Citation: R v Passlow, Todd Phillip [2016] NSWDC 437
Court: District Court of New South Wales
Date: 17 February 2016
Judge: Judge S Norrish QC
Background
The offender pleaded guilty to one count of ongoing supply of a prohibited drug (methylamphetamine) contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW), which carries a maximum penalty of 20 years imprisonment and/or 3,500 penalty units. The offending occurred over a 30-day period between 16 April and 15 May 2015. The offender committed the offence while on bail.
The offending arose from the offender's presence at a residence occupied by a person who was the primary target of an undercover police operation. On 16 April 2015, the offender agreed to sell methylamphetamine to an undercover officer (0.21 grams for $200), and later that day participated in a separate supply by handling money and drugs between the officer and the primary target (valued at $300).
On three subsequent occasions in May 2015, the offender supplied what he described as rock salt to an undercover officer, knowing the substance contained no prohibited drug. The offender had a history of illicit drug addiction and had undertaken treatment to address it. He had spent approximately one month and 22 days in pre-sentence custody.
Legal Issues
- Whether the offender's knowledge that the substance he supplied on three occasions was not a prohibited drug affected his liability under the Drug Misuse and Trafficking Act 1985 (NSW)
- How that knowledge bore on the offender's moral culpability for sentencing purposes
- What weight to give to the fact that drugs were supplied to an undercover police officer, rather than into the broader community
- Whether the offending was at, below, or above the mid-range of objective seriousness
- The appropriate sentence, accounting for the early guilty plea, the offender's addiction, his personal circumstances, and the commission of the offence while on bail
Decision
The court addressed the question of liability arising from the three transactions in which the offender knowingly supplied rock salt. Relying on R v Kalpaxis [2001] NSWCCA 119 and the extended definition of supply in ss 3 and 40 of the Drug Misuse and Trafficking Act 1985 (NSW), the court found the offender was nonetheless guilty of the offence. However, the court held that knowingly supplying a non-prohibited substance substantially reduced the offender's moral culpability, distinguishing this situation from one where a supplier mistakenly believes their product contains no prohibited drug.
On the question of the offending's objective seriousness, the court considered the small quantities involved, the limited financial reward, and the fact that drugs were supplied to undercover officers rather than disseminated into the community. Drawing on Regina v Chan [1999] NSWCCA 103 and Gao v R [2008] NSWCCA 234, the court acknowledged that supplying to an undercover officer does not automatically reduce culpability, but found that on these particular facts the offending fell well below the mid-range of objective seriousness.
The court characterised the offending as opportunistic rather than planned or organised. The offender's involvement arose from his presence at another person's premises, and he was not the primary target of the operation. The court gave the offender a full discount for his early plea of guilty and took into account his addiction, his engagement with treatment since release from custody, and the support of his family.
Orders Made
• Bond continued with requirement to report to Community Corrections by end of business on Friday (within 48 hours)
The judgment records that the offender was released on some form of bond with supervision by Community Corrections, and was directed to report to Community Corrections by close of business on the Friday following the hearing. The court also noted that any future offending constituting a breach of the bond would result in a sentence of imprisonment accumulative upon or partially accumulative upon any sentence for that breach.
Key Takeaways
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Under ss 3 and 40 of the Drug Misuse and Trafficking Act 1985 (NSW), a person who knowingly supplies a non-prohibited substance to an undercover officer can still be convicted of ongoing supply, as confirmed by reference to R v Kalpaxis [2001] NSWCCA 119.
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The offender's knowledge that the substance supplied was not a prohibited drug was a significant mitigating factor going to moral culpability, even though it did not defeat liability.
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Supplying drugs to an undercover police officer is not, as a matter of principle, always a factor that diminishes culpability: the reduction depends on the facts, including the quantities involved and the likelihood of broader community dissemination.
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Opportunistic offending arising from mere presence at a co-offender's premises, involving small quantities and modest financial reward, placed this case well below the mid-range of objective seriousness for an ongoing supply offence.
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A full discount for an early guilty plea, combined with demonstrated engagement with addiction treatment, were recognised as relevant mitigating factors in the sentencing exercise.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25A(1), 40
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Fayd'Herbe v R [2007] NSWCCA 20
- Gao v R [2008] NSWCCA 234
- Mirza v R [2007] NSWCCA 248
- Polley v R [2015] NSWCCA 247
- R v Giang [2005] NSWCCA 387
- R v Kalpaxis [2001] NSWCCA 119
- R v MRN [2006] NSWCCA 155
- R v Smiroldo (2000) 112 A Crim R 47
- R v Thompson and Houlton [2000] NSWCCA 309
- Regina v CBK (2002) 135 A Crim R 260
- Regina v Chan [1999] NSWCCA 103
- Regina v Zamagias [2002] NSWCCA 17
- Veen v The Queen (No 2) (1988) 164 CLR 465