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District Court 27 January 2017

R v Phan

[2017] NSWDC 21

Drugs
CRIMINAL LAW SENTENCE DRUG SUPPLY

Citation: R v Phan [2017] NSWDC 21
Court: District Court of New South Wales
Date: 27 January 2017
Judge(s): Berman SC DCJ

Background

The offender was stopped by police in August 2014 after being detected speeding. During a search of his vehicle, police found three bags of methylamphetamine totalling 14.58 grams at 80.5% purity, small quantities of cocaine and MDMA, Xanax and Valium tablets, drug administration equipment, and $2,050 in cash.

The offender pleaded guilty to supplying the methylamphetamine and possessing the remaining items. He had no prior criminal history, was employed, and was in a long-term relationship with a child. His principal personal issue was ongoing drug use.

The matter came before the court for sentencing after a lengthy history. The judge had previously adjourned the proceedings under section 11 of the Crimes (Sentencing Procedure) Act to allow the offender to demonstrate rehabilitation, but compliance was poor. By the time of sentencing, the offender had produced clean urinalysis results and shown some belated improvement.

  • Whether the appropriate custodial sentence should take the form of full-time imprisonment, a suspended sentence, or an Intensive Corrections Order (ICO)
  • What weight to give the offender's guilty plea, personal circumstances, and rehabilitation history
  • Whether the objective seriousness of the offending required full-time custody or permitted a community-based sentencing option

Decision

Both parties accepted, and the court agreed, that the sentence would be two years or less, placing the matter within the range where an ICO is legally available. The court found that full-time custody was not required given the offender's lack of criminal history, his ongoing employment and family responsibilities, and his belated but genuine engagement with rehabilitation.

However, the court rejected a suspended sentence as insufficient punishment for the objective gravity of drug supply offending. General deterrence carries significant weight in drug supply matters, and the court found that a suspended sentence would not adequately reflect the seriousness of the conduct or serve that purpose.

The court identified the ICO as the appropriate middle ground. An ICO imposes real restrictions on liberty through curfews and community service, and its random supervision and drug-testing regime also supports rehabilitation. The court expressly noted that despite the offender's past difficulties with the Probation and Parole Service, these supervisory elements were also in his own interests.

The guilty plea, though entered late, retained utilitarian value and resulted in a reduction of approximately 10% from what would otherwise have been imposed. The court adjourned the matter to allow an ICO suitability assessment to be completed before finalising the sentence.

Orders Made

• Matter adjourned to 17 March for consideration of the results of the ICO assessment

Key Takeaways

  • A suspended sentence, while capable of constituting punishment in principle, may be insufficient to reflect the objective gravity of drug supply offending, even where the offender has no prior criminal history and positive personal circumstances.
  • The District Court identified the Intensive Corrections Order as an intermediate sentencing option that addresses both punishment (through curfew and community service) and rehabilitation (through random supervision and drug testing), without requiring full-time custody.
  • Where there is no evidence of large-scale trafficking, such as drug ledgers or incriminating communications, an offender charged with drug supply does not need to demonstrate exceptional circumstances to avoid a full-time custodial sentence.
  • A late guilty plea still carries utilitarian value and may result in a sentencing discount, though the court will calibrate that discount according to how late the plea was entered.
  • General deterrence remains a significant sentencing consideration in all drug supply matters, regardless of the scale of the offending or the offender's personal circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), including section 11 (adjournment for rehabilitation purposes)

Cases cited: None stated in the judgment.