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District Court 26 May 2017

R v Swanton

[2017] NSWDC 226

Drugs
CRIMINAL LAW SENTENCE

Citation: R v Swanton [2017] NSWDC 226
Court: District Court of New South Wales
Date: 26 May 2017
Judge: Berman SC DCJ

Background

The offender was before the District Court for sentencing on charges of possessing prohibited drugs for the purposes of supply. The offending occurred in April 2015, when police found her in possession of two different types of drugs intended for supply. After being arrested and granted bail, she was discovered a short time later in further possession of drugs for supply purposes. Two Form 1 documents (listing additional matters to be taken into account at sentencing) accompanied the principal charges.

By the time the matter came before the court for sentencing, the offender had engaged in what appeared to be meaningful rehabilitation. She had completed the WHOS (We Help Ourselves) residential rehabilitation program, secured employment, and was attending Narcotics Anonymous. Character evidence spoke positively to the change she had undergone since her arrest.

Despite this, the court identified gaps in the material presented, particularly the absence of evidence confirming she had remained drug-free, and the uncertainty as to whether her rehabilitation would be sustained.

  • Whether the offender's apparent rehabilitation was sufficient, at the time of the hearing, to justify a sentence other than full-time imprisonment for serious drug supply offences
  • Whether an adjournment under section 11 of the Crimes (Sentencing Procedure) Act was appropriate to allow further evidence of rehabilitation to be gathered before a final sentence was imposed

Decision

Berman SC DCJ noted that the objective seriousness of the offending, involving repeated drug supply across two separate incidents in quick succession, would ordinarily attract a full-time custodial sentence. The evidence of rehabilitation was promising but incomplete. In particular, there was no objective evidence, such as urinalysis results, confirming that the offender had ceased using drugs.

The court adjourned sentencing under section 11 of the Crimes (Sentencing Procedure) Act to February 2018. This provision allows a court to postpone the passing of sentence to monitor an offender's progress. The court was careful to make clear that the adjournment carried no guarantee of a non-custodial outcome, even if the offender performed well in the intervening period.

The court explained that the prospects of avoiding full-time custody would be materially improved if, by the next hearing, the offender could demonstrate continued rehabilitation and drug abstinence supported by regular testing results. However, the final sentencing decision would depend entirely on the material presented at that later occasion.

Orders Made

  • The offender was remanded under section 11 of the Crimes (Sentencing Procedure) Act to Friday 23 February 2018
  • Bail was continued on conditions including:
  • No use of illegal drugs whatsoever (including cannabis)
  • Supervision by the Probation and Parole Service
  • Submission to regular urinalysis, at least fortnightly, with results to be provided to the court at the next hearing; if the Probation and Parole Service did not arrange testing at that frequency, the offender was required to arrange and fund testing herself
  • A relaxation of the fortnightly testing requirement was available on application to the court if the offender had accumulated a clean testing record and the cost and frequency proved prohibitive

Key Takeaways

  • Serious drug supply offending, particularly where it occurs repeatedly across separate incidents, ordinarily attracts full-time custodial sentences in the District Court, regardless of subsequent rehabilitation efforts.
  • A section 11 adjournment under the Crimes (Sentencing Procedure) Act permits a court to defer sentence while monitoring an offender's rehabilitative progress, but it does not constitute a promise or indication that a non-custodial sentence will follow.
  • Evidence of rehabilitation carries greater weight when supported by objective, verifiable material. Attendance at programs and employment, while relevant, may be insufficient on their own without corroborating evidence of drug abstinence.
  • Where an adjournment is granted to assess rehabilitation, the court may impose structured bail conditions, including mandatory drug testing, to generate the objective evidence required for the next hearing.
  • The final sentencing outcome under a section 11 adjournment remains entirely at the court's discretion and will be determined by the totality of material presented when the matter returns.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11 (remand for rehabilitation assessment before sentence)

Cases cited: None cited in the judgment.