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District Court 27 October 2017

R v LESLIE, Michael

[2017] NSWDC 381

Drugs
CRIMINAL SENTENCE SUPPLY PROHIBITED DRUG 70.73 GRAMS OF METHYLAMPHETAMINE ROLE OF THE OFFENDER OBTAINED THE DRUGS FROM SOMEONE ELSE

Citation: R v LESLIE, Michael [2017] NSWDC 381
Court: District Court of New South Wales
Date: 27 October 2017
Judge(s): Judge S Norrish QC

Background

The offender was convicted by a jury of supplying a prohibited drug, namely methylamphetamine, at Broken Hill on 27 May 2016. He had travelled from Adelaide to Broken Hill with two other men, driving a hire car arranged in another person's name and booking motel accommodation under his own name.

Police, alerted by the motel manager, executed a search warrant on the room. They found 70.73 grams of methylamphetamine packaged in two separate quantities. The offender's DNA profile was identified on the seal of one package. His personal possessions and business records were also found in the room, though the offender himself was not present during the search.

The prosecution proceeded on the basis of "deemed supply," a legal mechanism under which possession of a quantity of a prohibited drug exceeding the statutory trafficable threshold is treated as supply in the absence of a contrary explanation. The total quantity found well exceeded both the trafficable quantity (3 grams) and the indictable quantity (5 grams), though it fell short of the commercial quantity threshold of 250 grams.

  • What facts could be established beyond reasonable doubt for sentencing purposes, including whether the offender possessed the full 70.73 grams or only the smaller package bearing his DNA
  • What role the offender played in the supply operation and how that bore on objective seriousness
  • Whether the offending was consistent with a "user dealer" scenario, which would have reduced its seriousness
  • Whether "special circumstances" existed justifying a departure from the standard ratio between the non-parole period and the head sentence
  • The correct approach to calculating backdated custody, including a broken period of pre-sentence detention

Decision

Judge Norrish was satisfied beyond reasonable doubt that the offender was in possession of the total quantity of 70.73 grams, having regard to the packaging, the proximity of the two packages within the room, and the offender's personal connection to the space. His Honour accepted that the offender may have been involved in a joint criminal enterprise with one or both of the other men, but noted that joint participation does not necessarily reduce the objective seriousness of the offending.

The court rejected the submission that the offender should be sentenced on the basis of possession of only the smaller 14.29-gram package. Although his DNA was found on that package's seal, the circumstances as a whole, including his logistical control of the trip, payment for the vehicle hire, and booking of the accommodation, pointed to a broader role. The court found that the character of the offending was inconsistent with a "user dealer" situation; the quantity and packaging were consistent with bulk supply.

His Honour found that the evidence was silent on the precise financial benefit the offender stood to gain. The court could not determine whether he was a financer, a profit-sharer, or merely an employee in the operation. The offender had also been subject to two good behaviour bonds from the Adelaide Magistrates Court at the time of the offence, which were relevant to his antecedents.

Special circumstances were found, primarily because the offender had never previously served a term of custody. This justified adjusting the ratio between the non-parole period and the total sentence. His Honour also clarified the correct method for calculating the commencement date of the sentence, noting that it was appropriate to backdate the sentence to account for the full broken period of pre-sentence custody rather than dating it from a later point and making adjustments.

Orders Made

  • Total sentence of three years imprisonment
  • Non-parole period of 18 months
  • Sentence backdated to account for the broken period of pre-sentence custody, with the commencement date set accordingly

Key Takeaways

  • The District Court confirmed that joint participation in a supply operation does not automatically reduce the objective seriousness of the offending, even where another participant may have had a more prominent role.
  • A defendant's logistical control over a drug transport operation, including arranging vehicles, booking accommodation, and driving, can support a finding of possession of the total drug quantity found at the relevant premises, even where DNA evidence links the defendant directly to only part of it.
  • The packaging and quantity of methylamphetamine inconsistent with personal use can displace any inference of a "user dealer" scenario, even where the offender is an established drug user.
  • Special circumstances in sentencing are capable of being found where an offender has no prior custodial history, justifying a departure from the standard non-parole period ratio.
  • Where an offender has served a broken period of pre-sentence custody, the correct approach is to backdate the sentence to capture the whole period rather than commencing the sentence from a later date and making separate adjustments, which the court described as leading to confusion and obscuring the true effect of the penalty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Robertson v R [2017] NSWCCA 205
- R v Gu [2006] NSWCCA 104
- R v Gip (2006) 161 A Crim R 173
- R v Fayd'herbe [2007] NSWCCA 20
- R v Carrion (2000) 49 NSWLR 149
- R v Clark (NSWCCA, 15 March 1990, unreported)
- R v Bardo (NSWCCA, 14 July 1992, unreported)
- R v Ozer (NSWCCA, 9 November 1993, unreported)