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District Court 29 April 2016

R v Casey Cameron

[2016] NSWDC 60

Drugs
SENTENCING

Citation: R v Casey Cameron [2016] NSWDC 60
Court: District Court of New South Wales
Date: 29 April 2016
Judge(s): Mahony SC DCJ

Background

The offender pleaded guilty at the earliest opportunity to one count of ongoing supply of prohibited drugs under s 25A(1) of the Drug (Misuse and Trafficking) Act 1985. The charge arose from six separate transactions involving methylamphetamine (ice) conducted between 20 May 2015 and 16 June 2015, each with an undercover police officer or a person who on-sold to one. The quantities supplied across the six occasions were small, ranging from 0.04 grams to 0.96 grams (the last of which was in fact rock salt, not methylamphetamine).

The offence carries a maximum penalty of 20 years imprisonment. The offender had spent approximately two months and 24 days in pre-sentence custody before being released on Supreme Court bail.

The sentencing hearing drew on a range of materials, including a pre-sentence report, letters from a drug and alcohol rehabilitation service, and a psychiatric report from Dr Richard Furst. Those materials documented a background of childhood instability, relationship breakdown, single parenthood, and a rapid escalation from social methamphetamine use to daily dependence beginning in early 2015.

  • Whether a full-time custodial sentence was warranted for an offender convicted of ongoing drug supply involving relatively small quantities of methylamphetamine.
  • Whether, if imprisonment was appropriate, a sentence of no more than two years justified referral for an Intensive Correction Order (ICO) assessment rather than immediate full-time custody.
  • What weight to give to mitigating factors including mental health diagnoses, drug dependence, an early guilty plea, genuine rehabilitation efforts, and prospects of reoffending.
  • Whether the prior "policy" or "rule" favouring full-time custody for drug supply offenders, articulated in cases such as R v Gu, remained applicable following the introduction of ICOs as a sentencing option in 2010.

Decision

Mahony SC DCJ was satisfied that no penalty other than imprisonment was appropriate, having regard to the objective seriousness of ongoing drug supply, the six transactions over nearly a month, and the aggravating circumstance that the last supply occurred on the same day the offender had appeared in court on separate traffic offences. That sequence of events weighed against the offender despite the relatively small quantities involved.

The court gave significant weight to mitigating factors. Dr Furst diagnosed the offender with Substance Use Disorder (alcohol and amphetamines) and Persistent Depressive Disorder (Chronic Dysthymia), concluding that her addiction and underlying depression mitigated to some extent against the seriousness of her conduct. The court accepted that her drug use was a maladaptive response to depression and emotional distress, and that she had demonstrated genuine insight, remorse, and steps toward rehabilitation by engaging with the Calvary Riverina Drug and Alcohol Centre.

On the sentencing alternatives, the court engaged with the Court of Criminal Appeal's reasoning in EF v R [2015] NSWCCA 36. That decision acknowledged that earlier statements of principle requiring full-time custody for substantial drug supply offending were made before ICOs became available in October 2010. The District Court accepted that failure to consider an ICO as an alternative could cause injustice in an appropriate case. Balancing the offender's rehabilitation prospects, mental health needs, early plea, and time already served, the court concluded that a sentence of no more than two years was warranted and that an ICO assessment was appropriate before final sentence was imposed.

Orders Made

  • No sentence other than imprisonment was found to be appropriate.
  • The sentence was determined to be likely no more than two years' imprisonment.
  • The offender was referred for assessment of suitability for an Intensive Correction Order under s 7 of the Crimes (Sentencing Procedure) Act 1999.
  • The matter was adjourned to 18 August 2016 at the District Court Sydney for consideration of the assessment report and for sentencing.

Key Takeaways

  • The District Court confirmed that the pre-2010 "policy" favouring full-time custody for substantial drug supply offenders does not automatically foreclose consideration of an ICO, following the Court of Criminal Appeal's analysis in EF v R [2015] NSWCCA 36.
  • Under s 25A(1) of the Drug (Misuse and Trafficking) Act 1985, ongoing supply requires proof of three or more separate supply transactions within a 30-day period; the offence carries a maximum of 20 years imprisonment regardless of the quantities involved in each individual transaction.
  • Committing a further offence on the same day as a court appearance, even a minor one, can constitute an aggravating factor that weighs against an offender at sentence.
  • Diagnosed mental health conditions, including Persistent Depressive Disorder, and a documented link between those conditions and drug dependence may mitigate the objective seriousness of drug supply offending, though they do not displace the need for an imprisonable sentence in cases of this kind.
  • Where a sentencing court determines that imprisonment is warranted but the term is unlikely to exceed two years, referral for an ICO assessment remains available even in cases of ongoing drug supply, provided the individual circumstances support it.

Legislation and Cases Referenced

Legislation
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7, 12
- Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW)

Cases
- EF v R [2015] NSWCCA 36
- Lamb v R [2014] NSWCCA 50
- R v Gu [2006] NSWCCA 104
- R v Hide [2003] NSWCCA 371
- R v Wong [1999] NSWCCA 420