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District Court 25 February 2016

R v Baptist

[2016] NSWDC 83

Drugs
CRIMINAL LAW SENTENCE DRUG SUPPLY AMPHETAMINE LYSERGIDE TRAFFICKING TO A SUBSTANTIAL DEGREE

Citation: R v Baptist [2016] NSWDC 83
Court: District Court of New South Wales
Date: 25 February 2016
Judge: Berman SC DCJ

Background

The offender attended the Midnight Mafia Dance Party at Sydney Olympic Park carrying approximately 150 amphetamine tablets and 39 dosage units of lysergide (LSD). Police at the event searched a bag he had checked into the cloakroom, found $2,695 in cash, and waited for the owner to return. When the offender collected the bag, police searched him and found the remaining drugs: 27.77 grams of amphetamine (approximately 100 tablets) and 0.36 grams of lysergide.

The offender admitted to police that he had already supplied roughly 50 amphetamine tablets to acquaintances at the event before his arrest. He was a user-dealer: he supplied drugs at dance parties to fund his own drug habit rather than to generate profit.

He pleaded guilty to two counts of drug supply. The court proceeded to sentence him, with the guilty pleas attracting a 25 per cent discount for their utilitarian value.

  • Whether the offender's conduct constituted trafficking to a substantial degree, given the quantity of drugs involved and the pattern of supply that evening.
  • Whether the established sentencing principle requiring full-time custody for trafficking to a substantial degree, absent exceptional circumstances, still applied following the introduction of intensive corrections orders (ICOs) under the Crimes (Sentencing Procedure) Act.
  • Whether an ICO was an appropriate sentencing disposition in the circumstances, having regard to general deterrence and the offender's prospects of rehabilitation.

Decision

The court found, and defence counsel conceded, that the offender had trafficked to a substantial degree. Arriving at a dance party with approximately 150 amphetamine tablets and 39 LSD doses, supplying around 50 tablets during the event, and intending to supply the remainder made that characterisation straightforward.

The court engaged directly with the tension between the traditional rule and the availability of ICOs. Historically, trafficking to a substantial degree without exceptional circumstances required full-time imprisonment. However, the court noted there was no Court of Criminal Appeal authority on whether that rule survives the introduction of ICOs. Berman SC DCJ concluded that sentencing judges must now apply their own assessment of whether full-time custody remains necessary in each case.

On the facts, the court accepted that the offender supplied only to acquaintances he knew were already drug users, not to strangers, which placed his conduct towards the lower end of the seriousness spectrum for this type of offending. The court also accepted that he had made genuine rehabilitative efforts since arrest, including attendance at Narcotics Anonymous, psychological counselling, and abstinence from drug use. He had good prospects of rehabilitation and the support of his family.

Despite those mitigating factors, the court declined to rule out full-time custody entirely at this stage. Having determined that a sentence of two years or less was appropriate, the court referred the offender for assessment as to his suitability for an ICO. The court was explicit that full-time imprisonment remained a real possibility depending on the outcome of that assessment.

Orders Made

  • The offender was referred for assessment as to his suitability to serve a sentence of imprisonment by way of an intensive corrections order.
  • Bail was continued pending the assessment report.
  • The matter was adjourned to 20 May 2016.

Key Takeaways

  • The District Court confirmed that supplying approximately 150 amphetamine tablets at a single event, with around 50 supplied before arrest and the remainder intended for future supply, constituted trafficking to a substantial degree.
  • Where no Court of Criminal Appeal authority resolves whether an established sentencing rule survives a legislative change (here, the availability of ICOs), sentencing judges must exercise their own discretion in applying the rule to the facts before them.
  • A user-dealer who supplies only to known acquaintances to fund personal drug use, rather than approaching strangers for profit, may be treated as occupying the lower end of the seriousness range for supply offences, though this does not preclude full-time custody.
  • General deterrence carries significant weight in drug supply sentencing; the court observed that an ICO, while a custodial sentence, may often be insufficient to achieve general deterrence compared with full-time imprisonment.
  • Post-offence rehabilitation, including cessation of drug use, engagement with support programmes, and family support, are relevant mitigating factors, but their presence does not guarantee a non-custodial sentence where the objective seriousness of the offending is high.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW) (provisions relating to intensive corrections orders and sentencing thresholds)

Cases cited: No cases were cited in the judgment or provided in the metadata.