Citation: R v White [2017] NSWDC 159
Court: District Court of New South Wales
Date: 26 May 2017
Judge: Berman SC DCJ
Background
On 3 October 2015, an 18-year-old attended a music festival at Centennial Park, Sydney. A drug detection dog named Buster indicated the presence of drugs on the offender. When questioned, the offender initially denied having anything, but eventually disclosed he was carrying pills.
Police found 49 capsules of MDMA weighing 3 grams, concealed in his underwear. The capsules were individually wrapped in black tape, placed inside a condom, and packaged within resealable bags. They had been doused in cologne and wrapped in alcohol wipes, indicating a deliberate attempt to mask the scent from drug detection dogs.
The offender, then aged 18 and now 20 at the time of sentencing, pleaded guilty at the earliest opportunity. He had no prior criminal history. He told a psychologist and a Community Corrections officer that he had been handed the pills shortly before entering the festival and was acting as a carrier for someone else, in exchange for a portion of the drugs. He did not give evidence on this account himself.
Legal Issues
- Whether the offender's account that he was a mere carrier, rather than an independent supplier, could be accepted on the balance of probabilities
- What weight should be given to the offender's youth, personal background, and early guilty plea in sentencing
- Whether a non-custodial sentence such as a suspended sentence was appropriate, or whether full-time imprisonment or an Intensive Corrections Order (ICO) was required
Decision
The court could not be satisfied on the balance of probabilities that the offender was acting only as a carrier. His account was presented solely through hearsay, as he gave no sworn evidence. His Honour acknowledged it was possible the account was true, but equally possible that the offender intended to sell the drugs himself, and declined to proceed on either basis.
On the question of youth, the court gave significant weight to the offender's age. He was 18 at the time of the offence and 20 at sentencing. His Honour noted that the law does not treat the 18th birthday as a bright line for adult maturity, and that youth was a substantial factor favouring a non-custodial disposition. The court also considered his difficult upbringing, including the psychological impact of his father's suicide attempts, and his status as a first offender who pleaded guilty at the first opportunity, attracting a 25% sentencing discount.
The court rejected the defence submission that a suspended sentence was appropriate. His Honour held that personal deterrence required the offender to appreciate the seriousness of drug supply in a concrete way, and that a suspended sentence would not achieve this. The court determined a sentence of two years or less was appropriate and that the matter should be referred for assessment of the offender's suitability for an Intensive Corrections Order, with the assessment result to be considered at a later date.
Orders Made
• Matter adjourned until Thursday 6 July
• Offender referred for assessment as to suitability to serve sentence by means of an Intensive Corrections Order
• Court will consider the results of the assessment on the adjourned date
• Sentence of imprisonment to be imposed, likely to be two years or shorter
• If appropriate, offender to serve sentence by means of an Intensive Corrections Order
The court did, however, make the following interim procedural direction:
- The matter was adjourned to 6 July 2017 for an ICO suitability assessment
- The offender was referred to the relevant authority for that assessment
- The court indicated a sentence of two years or less was in contemplation, to be finalised on the adjourned date
Key Takeaways
- The District Court declined to accept an offender's account of his role in drug supply where that account was presented only through hearsay and was not tested by the offender giving sworn evidence.
- A 25% sentencing discount applied for an early guilty plea by a first offender charged with supply of a prohibited drug.
- Youth does not disappear as a mitigating factor at age 18. The court treated the offender's age at the time of the offence as a significant consideration weighing against full-time imprisonment.
- A suspended sentence was found insufficient where personal deterrence was a necessary sentencing objective, even for a young, first-time offender.
- An Intensive Corrections Order was identified as the likely vehicle for a custodial sentence of two years or less, subject to the offender being assessed as suitable, including through drug testing.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text or metadata.