AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 27 January 2017

R v Cunningham

[2017] NSWDC 106

Drugs
CRIMINAL LAW SENTENCE SENTENCE AFTER S11 REMAND SUPPLY PROHIBITED DRUG POSSESS PROHIBITED DRUG.

Citation: R v Cunningham [2017] NSWDC 106
Court: District Court of New South Wales
Date: 27 January 2017
Judge(s): Berman SC DCJ

Background

The offender pleaded guilty to supplying a prohibited drug, with two further drug possession matters dealt with on a Form 1 (meaning they were taken into account at sentencing without separate convictions being recorded). The matter first came before the court some time prior to the sentencing date, at which point the judge adjourned proceedings under section 11 of the Crimes (Sentencing Procedure) Act to allow the offender an opportunity to demonstrate rehabilitation.

On the next court date in November 2016, the offender had shown concrete progress rather than merely promising change. The court determined that a custodial sentence was warranted but flagged that an intensive corrections order (ICO) would be suitable if the offender was assessed as eligible. The offender was subsequently assessed as suitable for an ICO.

By the final sentencing hearing on 27 January 2017, defence counsel renewed submissions for a suspended sentence rather than an ICO. The court rejected that approach and proceeded to impose the ICO.

  • Whether a suspended sentence under section 12 of the Crimes (Sentencing Procedure) Act was a sufficient sentencing outcome for a drug supply offence, given the offender's rehabilitation.
  • Whether the court could place weight on Judicial Commission statistics showing suspended sentences were a common outcome for similar offences.
  • The appropriate factual basis on which to sentence the offender, given inconsistent accounts about who would receive the drugs.

Decision

The court declined to accept the offender's evidence that he intended to supply the drugs only to a friend. The offender had given multiple inconsistent accounts, and the court found it could not determine whether the truth had been told. Sentencing proceeded on the basis that the offender possessed the drugs for the purpose of supply, without further specification as to the intended recipient.

On the question of a suspended sentence versus an ICO, the court reaffirmed its earlier position. Although a suspended sentence constitutes a real form of punishment, the court considered it insufficient to reflect the objective seriousness of a drug supply offence. Significant punishment remained necessary notwithstanding the offender's genuine rehabilitation.

Defence counsel pointed to Judicial Commission statistics suggesting suspended sentences were imposed more frequently than ICOs for this type of offence. The court approached those statistics with caution, noting they did not address the specific facts of the case and that ICOs had not been available throughout the entire statistical collection period, which likely caused them to be under-represented in the data.

Orders Made

  • The offender was sentenced to 12 months' imprisonment, to be served by way of an intensive corrections order.
  • The matters on the Form 1 were taken into account in the sentence.
  • The drugs were ordered to be destroyed.
  • The matter on the section 166 certificate was noted as withdrawn.

Key Takeaways

  • The District Court treated demonstrated rehabilitation as a meaningful factor supporting an ICO rather than a full-time custodial sentence, but not as a basis for reducing the sentence to a suspended term.
  • A section 11 adjournment under the Crimes (Sentencing Procedure) Act can provide a structured opportunity for an offender to demonstrate genuine change before the court proceeds to sentence.
  • Where an offender gives multiple inconsistent accounts about the intended recipient of drugs, the court may decline to accept any particular version and sentence on a general basis that possession was for the purpose of supply.
  • Judicial Commission sentencing statistics carry limited weight where the data collection period predates the availability of a particular sentencing option, such as an ICO, causing that option to appear under-represented.
  • Objective seriousness of a drug supply offence remained a weighty consideration, capable of displacing a suspended sentence even where the offender had made substantial rehabilitative progress.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW): section 11 (adjournment for rehabilitation), section 12 (suspended sentences), section 166 (certificate procedure)

Cases cited: None stated in the judgment.